MYLA BELLI Vs. B RAJAGOPAL

JUDGEMENT

(1.) THE defendants 2, 3 and 4 in O.S.No.12 of 2000 are the revision petitioners herein. THE suit was filed by the plaintiff/respondent herein for declaration and for permanent injunction. Except the revision petitioners herein others contested the suit. THE revision petitioners were set ex parte by the trial Court on 25.9.2002. Later the suit was decreed on 22.4.2003 against all the eight defendants on merits. It is stated by the petitioners that after receipt of notice in E.P.No.110 of 2003 in O.S. No.12 of 2000, they came to know that they were set ex parte.

(2.) ON 23.11.2003, the petitioners herein filed a petition to set aside the ex parte decree along with a petition to condone the delay of 425 days in filing the application to set aside the ex parte decree. The trial Court dismissed the said petition filed under Sec.5 of the Limitation Act, 1963, on the ground that the suit itself was decreed as early as 24.2.2003 and hence, the petition to set aside the ex parte decree is not maintainable and the reasons assigned for condoning the inordinate delay of 425 days are not valid. Hence, the present revision.

(3.) I have carefully perused the affidavit filed by the revision petitioners. The revision petitioners are three in number, in which the first petitioner is the father and two others are sons who were arrayed as defendants 2 to 4 in the suit. The learned counsel appearing for the revision petitioners Mr.Srinath Sridevan submitted that the first revision petitioner is aged 75 years and above and the second revision petitioner was looking after the cases and the family and his wife had undergone operation in August "1998" and again she fell ill, hence he was forced to stay at Mettupalayam between 1st week of September, 2002 and middle of January, 2003 and he was unable to follow up the case and that was the reason for non-appearance and delay in filing the petition to set aside the ex parte decree.