E MANOHARAN Vs. VASANTHA AMMAL

JUDGEMENT

(1.) HEARD the Senior counsel for the revision petitioners and the learned counsel appearing for the respondent.

(2.) THE revision petitioners are Defendants 1 and 2 in O. S. No. 174 of 2004 on the file of the Court of District Munsif, Arni which was filed for partition. The learned counsel would fairly admit that the plaint schedule property in O. S. No. 174 of 2004 was purchased by the plaintiff and the defendants 1 and 2 jointly and that each one of them is entitled to 1/3rd share in the plaint schedule property in O. S. No. 174 of 2004 and an exparte preliminary decree for partition of plaintiff's 1/3rd share was passed by the learned trial Judge and a final decree was also passed on 24. 7. 2006 in I. A. No. 103 of 2005 in O. S. No. 174 of 2004.

(3.) THE grievance of the revision petitioners is that the petition filed by them before the trial Court to set aside the exparte preliminary decree along with a petition under Section 5 of the Limitation Act to condone the delay in filing the same are pending before the trial Court without numbering the same and that the defendants have no objection for allotting 1/3rd share to the plaintiff and the remaining 2/3rd share to them. Admittedly, there is no appeal preferred by the plaintiff against the exparte preliminary decree passed in O. S. No. 174 of 2004 in respect of his 1/3rd share allotted in the preliminary decree in O. S. No. 174 of 2004. Under such circumstances, I am of the view that the application to condone the delay filed under Section 5 of the Limitation Act and also the petition to set aside the exparte preliminary decree against the defendants in O. S. No. 174 of 2004 are liable to be allowed on payment of cost of Rs. 1000/- to be paid to other side. The learned senior counsel appearing for the revision petitioners has paid the cost of Rs. 1000/- today to the other side which has been received by the learned counsel appearing for the respondent.