AMUTHA KALA Vs. GANESAN CHETTIAR (DIED)

JUDGEMENT

(1.) In this civil revision petition, the fair and decreetal orders, dated 03.03.2006, passed in I.A.No.30 of 2004 in O.S.No.209 of 2000, on the file of the Principal Sub Court, Tenkasi, are challenged.

(2.) The revision petitioner, who is the plaintiff in O.S.No.209 of 2000, has laid the suit against the respondent / defendant for damages on the footing that he had wilfully and unlawfully demolished the compound wall to which, the revision petitioner is entitled to. It is found that the said suit ended in a decree in favour of the plaintiff. No doubt, the said decree is an ex parte decree. To set aside the same, it is found that the defendant had preferred an application under Order IX Rule 13 of the Code of Civil Procedure and inasmuch as there has been a delay of 1133 days in preferring the said application, it is found that the defendant has preferred I.A.No.30 of 2004 to condone the said delay. The reason given by the defendant for the condonation of delay is that the summons in the suit had not been served on him and only during the course of execution proceedings laid by the plaintiff, he had come to know about the ex parte decree passed against him and further according to the defendant, in respect of the wall in dispute, the same being belonging to him, and according to him, he has sought for appropriate reliefs against the plaintiff by filing a suit in O.S.No.226 of 1998, on the file of the District Munsif Court, Senkottai and the said suit had been decreed in his favour and challenging the same, according to him, the plaintiff had preferred an appeal in A.S.No.31 of 2003 and the said appeal had ended in her favour and further according to him, challenging the first appellate Court's Judgment and Decree, he has preferred second appeal before this Court and the same is pending and inasmuch as the plaintiff had not whispered anything about the pendency of the present suit, he was unaware of laying of the present suit by the plaintiff for damages and also the ex parte decree obtained by her in the suit and hence, he could not file an application to set aside the ex parte decree in time and hence, the delay should be condoned.

(3.) Resisting the above case of the defendant, it is contended by the plaintiff by filing a counter that the reasons given by the defendant for the condonation of huge delay are false and the summons had been duly served upon the defendant in the suit and despite the receipt of the summons inasmuch as the defendant did not care to enter appearance and also file the written statement, the ex parte decree has been passed against him and it is false to state that the defendant had come to know about the ex parte decree only during the course of execution proceedings and further, according to the plaintiff, the defendant had laid a false suit in O.S.No.226 of 1998 and the appeal preferred by the plaintiff as against the Judgment and Decree passed in said the suit had been allowed and therefore, it is stated that the defendant is well aware of the decree passed in the present suit and on the other hand, in order to avoid the plaintiff from enjoying the fruits of the decree passed in the suit, the defendant has come forward with a false case to condone the huge and inordinate delay and hence, the application does not deserve acceptance and liable to be dismissed.