RAMABOYAN Vs. THIRUMAYI

JUDGEMENT

(1.) THE parties are husband and wife. The wife filed the suit in O.S. No.138 of 2010 for a declaration of title and recovery of possession based on her claim that though the property has been purchased in the name of her husband, it was she who purchased it out of her own funds in the name of her husband. Unfortunately, the husband, who received summons in the suit and entered appearance, failed to file written statement and the same resulted in an ex -parte trial and a consequent ex -parte judgment and decree in favour of the wife as prayed for in the plaint.

(2.) SUBSEQUENTLY , the husband came forward with an unnumbered petition under Order IX Rule 13 CPC to set aside the ex -parte decree. As the said petition was filed with a delay of 331 days, it was accompanied by a petition under Section 5 of the Limitation Act. The said petition filed under Section 5 of the Limitation Act was taken on file as I.A. No.694/2011 in O.S. No.133/2010 on the file of the trial court. The reason assigned in the affidavit accompanying the petition was that he had gone to Kerala to eke his livelihood and was awaiting a call from the advocate, but unfortunately, he did not receive any call from the advocate. It is his further contention that only after the decree was sought to be executed by filing an Execution Petition and delivery was sought to be effected, he got the knowledge that the suit filed by his wife against him had been decreed ex -parte and immediately thereafter he made arrangements for filing the petition to set aside the ex -parte decree.

(3.) THE learned trial judge, after hearing both sides, came to a conclusion that the delay was not satisfactorily explained and accordingly dismissed the application by the impugned order dated 14.02.2012. As against the said order, the husband, who figures as the defendant in the original suit, has come forward with the present civil revision petition under Section 115 of the Code of Civil Procedure. It is represented by the counsel for the petitioner that the revision was filed under Section 115 C.P.C by mistake in stead of filing the same under Article 227 of the Constitution of India and that hence the same may be treated as a revision under Article 227 of the Constitution of India. The said request of the learned counsel for the petitioner is accepted by this Court and this petition is dealt with as a petition filed under Article 227 of the Constitution of India.