SUBRAMANI Vs. RAMASAMY

JUDGEMENT

(1.) THESE Civil Revision Petitions are directed against the order of dismissal of Application filed under Section 5 of the Limitation Act, application filed to set aside the abatement due to death of the First defendant and the Application to bring on Legal Representatives of the Deceased first Defendant as parties to the Application.

(2.) 1. Relevant facts necessitated for disposal of these revision Petitions are as follows:- Defendants are alleged to have entered into a Sale Agreement with the Plaintiff agreeing to sell the suit properties. Plaintiff has obtained an exparte decree for specific performance in O. S. No. 117 of 1997 on 24. 12. 1998. For Execution of the Decree, E. P. No. 21 of 1999 was filed before Sub-Court, Sankari, which was later transferred to Sub-Court, Namakkal and renumbered as E. P. No. 259 of 2002. 2. 2. After receipt of Notice in the Execution Petition, defendants filed I. A. No. 1441 of 2002 under Section 5 of the Limitation Act (for short "the Act") seeking condonation of delay of 657 days in filing the Petition to set aside the exparte decree. The Plaintiff has filed his counter in I. A. No. 1441 of 2002. When that Application was pending, the First defendant died. Steps were not taken within the stipulated time for bringing on record the legal representatives of the deceased First Defendant. Second defendant filed Petition in I. A. No. 1648 of 2005 to condone delay of 665 days in filing the Petition to set aside abatement. He has also filed I. A. Nos. 1649 and 1650 of 2005 to set aside the abatement and to bring on record the legal representatives of the Deceased " First Defendant. Finding that reason for delay in taking steps to implead Legal Representatives of the First defendant has not been satisfactorily explained, the Court below dismissed all three Applications (I. A. Nos. 1648 to 1650 of 2005), which are impugned in c. R. P. Nos. 195 to 197 of 2007. For non taking of steps in I. A. No. 1441 of 2002 filed under Section 5 of the Act, lower Court dismissed that Application, which is challenged in C. R. P. No. 194 of 2007.

(3.) IN a Suit for specific performance, exparte decree has been passed on 24. 12. 1998. Defendants have taken steps for setting aside the exparte decree by filing the Petition under Section 5 of the Limitation Act. To condone the delay of 657 days in filing the Petition under O. 9 R. 13 C. P. C, when the Defendants have taken steps to set aside exparte decree and when the petitioner / Second Defendant is on record, the Court ought not to have dismissed I. A. No. 1441 of 2005 filed under Sec. 5 of the Act. It is to be noted that the Second Defendant married Plaintiff's Daughter. IN the supporting affidavit, the Second Defendant has averred that because of frequent quarrel with his wife, he had mental agony and suffering from illness and could not take prompt steps in the proceedings. When the Second Defendant has sworn an affidavit explaining the reasons for the delay, to advance substantial justice, the Court below ought to have considered the same.