P. KUMARESAN Vs. RAJAMMAL

JUDGEMENT

(1.) THIS Civil Revision Petition filed under Section 115 of the Code of Civil Procedure is directed against the fair and decreetal order dated 01.10.2009 in I.A.No.1244 of 2007 in O.S.No.225 of 2003, on the file of the Principal Sub -Court, Tiruppur.

(2.) THE petitioner is the plaintiff in the suit and the respondent is the first defendant. The suit was filed for a decree of specific performance of the contract of sale, dated 02.08.1990. Due to the non -appearance of the first defendant/respondent, suit was decreed exparte on 29.02.1996. The respondent filed an application in I.A.No.1244 of 2003, to condone the delay of 4075 days in filing the petition to set aside the exparte decree. The reason assigned by the respondent is that after she received the suit summons, she had engaged an Advocate at Tiruppur to appear on her behalf, who is said to have taken time from the Court for filing written statement and that he would inform the respondent about the hearing date to enable him to file written statement. However, no intimation was received from the Advocate and in the mean time, the husband of the respondent, who was aged about 70 years, suffered a paralytic stroke and the respondent had to take him for treatment and was permanently staying in Palakkadu. Subsequently, the respondent's husband passed away on 01.02.2006. The respondent further stated that she came to know that the suit was decreed exparte only on 22.07.2007, after receipt of the notice in E.P.No. 64 of 2007 and on enquiry, she found that the counsel engaged by her died about ten years back. Further, the respondent stated that she has never entered into an agreement with the plaintiff and has not seen him and the alleged agreement is a forged document and she has a valid defence in the suit. With the above reasons, the respondent sought for condonation of delay of 4075 days in filing the petition to set aside the exparte decree.

(3.) FURTHER , it was stated that the respondent filed counter statement in I.A.No.550 of 1993, on 01.10.1993, that she failed to file written statement in the suit. It was further stated that pursuant to the exparte decree, the petitioner deposited the balance sale consideration into Court on 06.03.1996 and thereafter, filed execution petition in E.P.No.64 of 2007 and notice was served on the respondent in the Execution Petition on 22.07.2007 for the hearing date on 25.07.2007. The respondent appeared before the Executing Court and was granted time to file counter and the matter was posted on 29.08.2007. Even thereafter, the respondent did not file the petition to set aside the exparte decree immediately and the same came to be filed only much thereafter.