T NATARAJAN Vs. M NAGARAJAN

JUDGEMENT

(1.) THE above revision has been filed against the order of the learned Subordinate Judge, Kumbakonam , dated 31. 3. 1994 in C. M. A. No. 12 of 1993 confirming the order dated 17. 11. 1992 passed by the learned District Munsif , Valangaiman at Kumbakonam in LA. No. 168 of 1992 in O. S. No. 139 of 1995. THE defendant in O. S. No. l39 of 1995 is the applicant and appellant before the courts below as also the petitioner herein.

(2.) THE suit has been filed by the respondent- plaintiff claiming the relief of redemption of mortgage and delivery of possession of the suit property. THE fact that the redemption sought for is that of an usufructuary mortgage said to have been executed by the plaintiff in favour of the defendant on 15. 10. 1975, is not seriously disputed. But, what is claimed by the defendant in his written statement filed is that though the document was executed as a mortgage, the plaintiff really agreed to sell the property. In addition to the said claim, a panchayat and further agreement of sale said to have been executed by the plaintiff on 14. 1. 1994 in favour of the defendant agreeing to sell the property , are also relied upon. Of course, even in the written statement, it is stated that the defendant reserves his right to seek remedy on the basis of the agreement of sale. THE order of the learned District Munsif disclose that the suit which was filed on 10. 6. 1985 was listed for trial on 28. 3. 1988 and on account of lapse and non-appearance of the defendant, the suit came to be decreed exparte. THEre upon, the defendant appears to have filed i. A. No. 959 of 1988 and the ex parte decree was set aside. Once again on 12. 9. 1989, for the lapse and default on the part of the defendant, an ex parte decree came to be passed in the suit. Again at the instance of the defendant in I. A. No. 878 of 1990, the exparte decree came to be set aside and the suit was restored for trial. THEreupon on 5. 9. 1991 the suit came to be listed for trial and again called on 6. 9. 1991 and P. W. I was examined. THEreafter, the enquiry proceeded on 9. 9. 1991, 10. 9. 1991, 13. 9. 1991, 16. 9. 1991 and 18. 9. 1991 and the evidence of P. W. 1 was completed and to examine the witnesses for the defendant, the suit was posted to 20. 9. 1991. On that date, D. W. I was said to have been examined in chief and the matter was adjourned to 23. 9. 1991. THEreafter, the matter was called on 24. 9. 1991, 30. 9. 1991 and 3. 10. 1991, when the learned counsel for the defendant reported no instructions and the defendant was called absent and the suit was decreed ex parte. It is set aside the said exparte decree passed on 3. 10. 1991 for the third time, application in I. A. No. 168 of 1992 came to be filed under O. 9, rule 13, C. P.C. THE said application has been opposed by the plaintiff by filing a counter affidavit. THE defendant appears to have filed a certificate from a doctor to show that at the material point of time, the defendant was suffering from asthma and the same was relied upon in support of the claim for condonation.