MOIDHEEN ABDUL KHADAR Vs. SABIA UMMAL

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the fair and decretal order passed in I.A.No.12 of 2011 in O.S.No.32 of 2009 dated 06.09.2013 on the file of the Court of Subordinate Judge, Nagapattinam.

(2.) The petitioner is the third defendant, respondents 1 to 3 are the plaintiffs and respondents 4 & 5 are the defendants 1 and 2 in O.S.No.32 of 2009. The respondents 1 to 3 filed the said suit against the respondents 4 & 5 and the petitioner for partition. The defendants did not appear and contest the suit. An exparte preliminary decree was passed on 06.08.2009. The petitioner filed I.A.No.12 of 2011 to condone the delay of 352 days in filing the petition to set aside the exparte preliminary decree. According to the petitioner, the summons in the suit were not served on the defendants and they came to know about the exparte decree only when the petitioner filed E.P to execute the decree obtained by him in O.S.No.68 of 2007. The petitioner got the documents through the Advocate and filed the present application to condone the delay in filing the petition to set aside the exparte decree. The petitioner has filed the present application within 30 days from the date of knowledge with the application to condone the delay. The petitioner also filed written statement along with the said application.

(3.) The third respondent filed counter affidavit and denied all the averments made in the affidavit filed in support of the above application. According to the third respondent, the petitioner/third defendant was not in India when the present application was filed. He was in Singapore on that date. The reason given by the petitioner is not valid reason and it is not correct to state that he came to know about the exparte decree only when the petitioner filed E.P to execute the decree obtained by him in O.S.No.68 of 2007.