SIDDHA GOUNDER Vs. MUTHUSAMY AND ANOTHER

JUDGEMENT

(1.) The petitioner filed the suit O.S. No. 274 of 1990 on the file of the Sub -Court Bhavani for specific performance of the suit agreement. The first respondent is the son of the second respondent. The second respondent was set ex parte. Since the first respondent was a minor, Court Guardian was appointed. As soon as the first respondent attained majority, the petitioner filed an application I.A. No. 609 of 1991 for the discharge of the Court Guardian. The 1st respondent remained ex parte and the application was allowed on 23.9.1991. Thereafter the sale deed was executed on 28.10.1992 pursuant to the order in E.P. No. 63 of 1992. In the E.P. also both the respondents refused to receive summons and they were set ex parte. While so, the first respondent filed the application I.A. No. 1372 of 1994 on 9.8.94 for condoning the delay of nine days in filing the application for setting aside the ex parte decree on the ground that he came to know about the ex parte decree only, on 11.7.1994. The said application was opposed by the petitioner herein on the ground that the first respondent had the knowledge about the ex parte decree even earlier and moreover in the E.P., the specific endorsement of the Amin is that both the respondents had refused to receive the summons. The refusal would amount to effective service. After considering the arguments of the counsel, the lower Court has allowed the application by order dated 1.8.1996. As against the said order, the present revision has been filed. The first respondent in his affidavit filed in support of the application I.A. No. 1372 of 1994 had stated that the petitioner herein filed a suit O.S. No. 325 of 1994 in which his counsel took notice on 30.6.1994 and undertook to file Vakalat. Thereafter, his counsel informed him about the suit. On 11.7.1994 his counsel filed Vakalat and on getting a copy of the plaint, the first respondent came to know about the ex parte decree in O.S. No. 274 of 1990. Since there is a delay of nine days in filing the application for setting aside the ex parte decree from the date of the knowledge, the petition has been filed.

(2.) The lower Court has condoned the delay mainly on the ground that the first respondent had not been served with the summons in the suit. The ex parte decree was passed in the year 1991. The second respondent -the father of the first respondent remained ex parte. Thereafter, the petitioner earnestly took steps for the appointment of the Court guardian for the then minor -the first respondent, in order to protect his interest. The Court guardian was appointed and subsequently the application was filed for the discharge of the Court guardian since the first respondent attained majority. In the said application notice was ordered. The Court Guardian made an endorsement 'No objection' on 26.8.1991. The notice sent to the first respondent returned with an endorsement that he had left the place. Hence fresh notice by affixture and by tom tom was ordered. The same was complied on 23.9.91 and the first respondent was set ex parte. Thereafter the application was allowed.

(3.) However, the petitioner filed E.P. No. 63 of 1992 to execute the ex parte decree for Specific Performance. In the E.P. notice was ordered. The counsel for the petitioner produced the certified copy of the notice and endorsement in the E.P. 63/92 wherein it is stated as follows: