GOVINDASAMY Vs. KALIAYAPERUMAL PADAYACHI

JUDGEMENT

(1.) The revision petitioner is the plaintiff in O.S.No.290 of 1993 on the file of the Principal Sub Court, Virudhachalam. The revision is filed against the dismissal of I.A.No.203 of 2000 in O.S.No.290 of 19 93 filed to condone the delay of 1123 days in filing the petition to set aside the ex parte final decree dated 11.4.1996 passed in I.A.No.950 of 1993 in O.S.No.290 of 1993.

(2.) In the suit O.S.No.290 of 1993 filed by the revision petitioner/plaintiff for partition, preliminary decree was passed allotting 1/4 th share in respect of schedule B(c), viz., items 43 to 54 of the suit properties which alone were ancestral properties. It appears, the first defendant, the respondent herein filed I.A.No.950 of 1993 for passing final decree, in which advocate-commissioner was appointed and considering the report of the advocate-commissioner, final decree was passed on 11.4.1996 allotting items 7 and 8 besides 0.10-3/4 cents in item 12 of the final decree petition towards the share of the first defendant. The revision petitioner, viz., the plaintiff filed the petition I.A.No.203 of 2000 to condone the delay of 1123 days in filing the petition to set aside the above ex parte final decree dated 11.4.1996, in that no notice was served upon him by the advocatecommissioner and as per panchayat in the village, it was agreed that the first defendant, who filed the petition for passing of final decree, has to withdraw the same and so, the plaintiff did not appear in the said final decree proceedings believing that the first defendant would withdraw the said application filed for passing of final decree. However, only on 13.4.1999 one Singaravel claimed that he has got right by virtue of purchase in the property enjoyed by him and he came to know that an ex parte decree was passed on 11.4.1996 and on the basis of the report of the advocate-commissioner, items 7 and 8 of the properties mentioned in final decree petition, have been allotted to the first defendant and the first defendant has also taken delivery of the said items of property without notice to the plaintiff. In fact the advocate-commissioner did not inspect the property. The first defendant also not taken delivery of items 7 and 8 of the final decree petition properties through Court which are in possession of the revision petitioner. Therefore, he has filed the petition to set aside the ex parte final decree dated 11.4.1996, along with the petition I.A.No.203 of 2000 to condone the delay of 1123 days in filing the said petition.

(3.) The petition was resisted disputing the panchayat set up by the plaintiff and stating that the plaintiff was fully aware of the final decree proceedings including appointment of advocate-commissioner and allotment of items 7 and 8 of the final decree petition I.A.No.950 of 1993 to the share of the first defendant as per final decree dated 11.4.1996. It is also stated in the counter that though the plaintiff came to know about the final decree proceedings on 13.4.1999, he has filed the petition to set aside the ex parte final decree and to condone the delay of 1123 days in filing the said petition only on 8.6.1999.