AYYANAR Vs. ARUMUGAM

JUDGEMENT

(1.) This civil revision petition has been preferred under Section 115 of the Civil Procedure Code questioning the correctness and legality of the order dated 22.08.2006 passed by the learned Principal District Munsif, Tindivanam in I.A.No.358/2004 in O.S.No.129/1998.

(2.) The revision petitioner as plaintiff, had filed the above said suit for recovery of the advance amount paid by him to the respondents herein under a sale agreement dated 13.10.1997 with interest and also for damages for breach of contract. The respondents, though entered appearance initially engaging a counsel, thereafter, failed to contest the case and thus, they suffered an ex-parte decree dated 25.11.1999. An un-numbered application came to be filed by the respondents herein to set aside the ex-parte decree along with an application in I.A.No.358/2004 to condone the delay of 1185 days in filing the application to set aside the ex-parte decree. It was contended therein that only on 22.03.2003, the respondents herein came to know that the ex-parte decree dated 25.11.1999 had been passed against them.

(3.) The application was resisted by the revision petitioner herein refuting the contentions raised by the respondents herein in the affidavit filed in support of the applications and contending that the respondents herein, besides having been emboldened to sell the property to a third party even while an order of attachment was in force, did have every opportunity to contest the case as they did receive notice at various stages in the execution proceedings. It was also contended by the revision petitioner herein that suppressing the receipt of notice and their appearance in the execution proceedings, they had come forward with the applications making false and untenable averments in the supporting affidavit and prayed for the dismissal of the application filed under Section 5 of the Limitation Act, 1963 holding that the inordinate delay in filing the application to set aside the ex-parte decree was not properly explained.