SARASWATHI Vs. THANGARAJ NADAR

JUDGEMENT

(1.) THIS Revision is preferred against the fair and decreetal order dated 7. 7. 2000 made in unnumbered CF. No. 4313/2000 in O. S. No. 373/79 on the file of the II Additional District Munsiff, Kuzhithurai.

(2.) RELAVANT facts necessitated for disposal of the revision Petition could briefly be stated thus: - The suit in O. S. No. 373/79 relates to S. No. 355 of Nattalam village to an extent of 1. 76 cents. The Plaintiffs � Nallthambi Nadar son of pappu Nadar, Thankaraj Nadar and Selvaraj have filed O. S. No. 373/79 for partition and allotment of their 34 cents in the suit S. No. 355. The case of the plaintiffs is that the First Plaintiff has purchased an extent of 22 cents on 22. 8. 1124 M. E. By the sale deed dated 14. 11. 56, the First Plaintiff has purchased 3 cents in the suit properties thus the First Plaintiff has got title and possession over 25 cents in the suit property. The Second Plaintiff who is the son of First Plaintiff had purchased 9 cents in the suit property by the sale deed dated 8. 7. 65 thus the Plaintiffs are entitled to total extent of 34 cents by the sale deeds.

(3.) AS rightly found by the learned District Munsif, the judgment and the preliminary decree dated 6. 2. 97 is an exparte decree. The judgment and the preliminary decree for partition is a well considered one, holding the entitlement of each of the contesting defendants. It is to be noted that at the time of passing of the preliminary decree the said Nallathambi Nadar was alive. D1 to D3 have filed common written statement. But no convincing reason is stated as to why the Defendants 1 to 3 (who filed written statement)have not contested the suit. When the Second Defendant has not contested the suit and allowed the preliminary decree to be passed, it is not open to the revision petitioners/legal Representatives of the deceased, Nallathambi Nadar, to challenge the preliminary decree for partition, which has been passed after contest, by terming the same as'exparte decree'. The Application under Order 9 and Rule 13 cannot at all be maintained. In that view of the matter the learned district Munsif, Kuzhithurai was right in not admitting the Application to condone the delay of 1288 days in filing the Petition (Under Order 9 Rule 13 cpc) to set aside the exparte decree. The impugned order does not suffer from any infirmity warranting interference. This Revision has no merits and it is bound to fail.