LAWS(MAD)-2005-9-36

R PALANISAMY Vs. K SATHIYA BALAN

Decided On September 23, 2005
R. PALANISAMY Appellant
V/S
K. SATHIYA BALAN Respondents

JUDGEMENT

(1.) THE order of the learned Subordinate Judge, Tirupur allowing the application to condone the delay of 2040 days filed by the first defendant in a suit for specific performance filed by the petitioner herein, is challenged by the petitioner/plaintiff.

(2.) ADMITTEDLY, the suit was filed by the petitioner/plaintiff seeking the relief of specific performance on an agreement of sale in O.S.No.506/97. There were two defendants and both the defendants were set ex parte and an ex parte decree was passed on 23.6.99. Subsequent to the same, an application for setting aside the ex parte decree was filed by the respondent/first defendant along with an application to condone the delay of 2040 days, since the application was filed on 11.4.2005.

(3.) ADMITTEDLY, the suit was filed based on the strength of an agreement of sale and seeking for decree for specific performance with a direction to execute the sale deed. The consideration of the sale deed was more than Rs.3,00,000/-. It is also an admitted position, that the first defendant/ respondent herein was not personally served with summons of the Court, though it was a claim by the petitioner/plaintiff that there was a substituted service of summons on the defendants, but in the instant case, the court was not satisfied with the same. In such a case, there was a delay of 2040 days. In the interest of justice, the ex parte decree should be set aside and the parties should be given an opportunity to put forth the defence and the matter can be decided on merits. The Court has to necessarily agree with the view of the learned Subordinate Judge and affirmed that part of the order.