PARTHIBAN Vs. GIRIJA

JUDGEMENT

(1.) THE Civil Revision Petitioner is the son of the deceased second defendant in O. S. No. 73 of 1996 on the file of the Sub Court, Kallakurichi. The first respondent is the plaintiff in the said suit. The Civil Revision petitioner/applicant has filed I. A. No. 317 of 2002 in o. S. No. 73 of 1996 praying to condone the delay of 713 days in filing the application under Section 5 of the Limitation act.

(2.) THE Civil Revision Petitioner/deceased second defendant's son/applicant in I. A. No. 317of 2002 has averred that a decree was passed against the first defendant and the second defendant in a suit on pronote and that O. S. No. 74 of 1992 was initially filed in the Sub Court, Virudhachalam and later, it was transferred to the District Court, Villipuram and re-numbered as O. S. No. 288 of 1994 and from there, it was transferred to the Sub Court, Kallakurichi and numbered as o. S. No. 73 of 1996 and taken on file. It is the case of the civil Revision Petitioner/applicant before the lower Court that the first defendant appeared before the Court and contested the case and a decree was passed on 20. 08. 1996 against the second defendant and that no notice of summons was sent to the second defendant either from the District court, Villipuram or from the Sub Court, Kallakurichi and his father was not aware of the facts of the case and that the petitioner was not aware of the details of the case and that his father did not receive any letter from his advocate and that the Plaintiff's husband met him 4 days before and asked him to settle the decree and he came to know all the details of the decree only after his visit to the Court and that when the case was transferred from one Court to another, the Court has sent notice to the parties but no notices were sent either by the District Court, Villipuram or by the Sub Court, Kallakurichi and resultantly, his father did not know about the case and that his father expired on 16. 09. 1998 at Attur and that the Plaintiff and the first defendant colluded together and set the first defendant exparte and hence, the delay of 713 days in filing order 9 Rule 13 application has to be condoned.

(3.) IN the counter filed by the first respondent, it is stated that it is false to allege that the first respondent's husband asked about the discharge of the decree 4 days prior to the date of filing of the application and then only, the Applicant knew about the decree and that the decree passed in the present case on 20. 08. 1996 was not an exparte decree but a decree passed after contest and recording of evidence after full trial and therefore, Order 9 Rule 13 petition will not lie and that the petitioner can and should file only an appeal and in such circumstances, the Application under Order 9 Rule 13 C. P. C is not tenable, the application under Section 5 of the Limitation Act is also not maintainable.