P SIVAKUMAR Vs. P VISWANATHAN

JUDGEMENT

(1.) THE order passed in I.A.No.644 of 2007 in O.S.No.605 of 2004 on the file of the Court of Principal District Munsif, Erode, an application filed under Section 5 of the Limitation Act, 1963 to condone the delay of 886 days in preferring an application to set aside the exparte decree, is under challenge. In the affidavit to I.A.No.644 of 2007 the reason stated for 886 days delay in filing a petition to set aside the exparte decree in O.S.No.605 of 2004 is that the petitioner's counsel, who was engaged to defend the petitioner, who was respondent in EP.No.58 of 2006, is that his counsel by oversight and mistake could not attend the court and also failed to inform the petitioner about the progress of the suit.

(2.) BUT the fact remains that after the suit O.S.No.605 of 2004 was decreed exparte, the decree holder had filed E.P.58 of 2006 for executing the sale deed as per the decree for specific performance passed in O.S.No.605 of 2004. In EP.No.58 of 2006 also, the respondents in EP.58/2006/the petitioners in IA.644 of 2007, have engaged a lawyer and also filed counter in EP.No.58 of 2006 as admitted by the petitioner in I.A.No.644 of 2007 in the cross examination (page 3 of the additional type set of papers containing the evidence of P.W.1 in I.A.No.644 of 2007 in O.S.No.605 of 2004). EP.No.58 of 2006 was disposed of and an exparte order was passed on 16.10.2006 since the respondents in EP.No.58 of 2006 / petitioner in I.A.No.644 of 2007 failed to appear for the enquiry after filing the counter. For delivery of possession, the decree holder / revision petitioner herein has filed EP.No.45 of 2007 on 28.3.2007 and while EP.No.45 of 2007 for delivery of possession is pending the respondents herein / petitioner in I.A.No.644 of 2007 / defendants in O.S.No. 605 of 2004 had filed I.A.No.644 of 2007 on 6.6.2007 under section 5 of the Limitation Act, 1963 to condone the delay of 886 days in filing a petition to set aside the exparte decree in O.S.No.605 of 2004. The learned trial court had allowed the application on condition the petitioners pays Rs.1,500/- towards costs to the other side on or before 21.09.2007. The said order is being challenged under this revision by the plaintiff in O.S.No.605 of 2004 / decree holder in EP.No.58 of 2006.