P BHASKARAN Vs. AYYAKANNU CHETTIAR

JUDGEMENT

(1.) THE petitioner is the eighth respondent in E. P. No. 153 of 1982 in O. S. No. 379 of 1954 on the file of the First Additional District munsif, -Madurai Town. On 05. 04. 2002, he was set ex parte by the executing Court and he filed an application within 30 days from the date of his knowledge on 28. 02. 2008. On the said date, the 4th respondent, one among the decree-holders came to his house and informed, him that she obtained an ex parte order against him and she was proceeding with the execution proceedings to take delivery of the property and thereafter alone, he came to know that an ex parte order was passed on 05. 04. 2002. Since the petition has been filed within one month from the date of his knowledge, the petition may be allowed.

(2.) IN the counter filed by the respondents 21 to 25 in E. A. No. 153 of 2008 it is alleged that already these respondents have obtained delivery order in the execution proceedings and in order to protract the matter, this petition has been filed with false allegations and that it is incorrect to state that the 4th respondent informed him about the ex parte order passed on 28. 02. 2008.

(3.) THE averments found in the counter of the 12th respondent in E. A. No. 153 of 2008 go to the effect that originally, O. S. No. 379 of 1954 was filed for redemption of mortgage. This petitioner and other were in possession of the property in the capacity of mortgagees. Preliminary decree was passed in the suit on 22. 03. 1956. An Appeal in a. S. No. 53 of 1956 was filed which suffered dismissal and a Second Appeal in S. A. No. 784 of 1957 was filed and the same was also dismissed by the High Court confirming the preliminary decree. 3 (1 ). This respondent filed A. S. No. 59 of 1966 which was Allowed with modifications. Then, the decree holders filed Second Appeal which was dismissed by this Court. No final decree has been passed afterwards. This respondent filed two applications to receive the mortgage amount and another application. In all the three applications, preliminary decree was passed by the Taluk munsif Court. The parties who have obtained preliminary decree in the original suit, have no right in the property, and the application filed by them for passing final decree has been dismissed. The 19th respondent has filed the counter expressing his consent to allow the application.