MOKKAMAYAN Vs. NATESAN PILLAI

JUDGEMENT

(1.) THE petitioners are plaintiffs in O.S.No.3 of 2005, on the file of the District Munsif Court, Nilakottai. The suit has been laid against three defendants for the relief of declaration that they alone have got the right over the suit properties and for permanent injunction against the defendants. Both the plaintiffs are spouses. The first defendant sold the suit property for Rs.40,000/ - in their favour on 29.7.1994. It was alleged in the sale deed that the plaintiffs had to discharge Rs.15,000/ - received by the first defendant from the second defendant. The second defendant filed a suit subsequently in O.S.No.178 of 1994 on the file of the District Munsif Court, Nilakottai for permanent injunction against the plaintiffs and the first defendant. The suit was decreed ex -parte. Thereafter, the second defendant filed a suit in O.S.No.215 of 1997, against these petitioners and the first defendant for recovery of mortgage amount.

(2.) IN the said suit, both the preliminary and final decree were passed ex -parte. In the plaint, the petitioners have alleged that in both the proceedings they did not receive summons and the defendants colluded together so as to make the service on these petitioners impossible. In the affidavit, it is further stated that even though it is alleged in the plaint that those decrees need not to be set aside, now it has become necessary to pray for the cancellation of the decrees passed in both the suits. By allowing the amendment application, the nature of suit or the cause of action will not be altered.

(3.) IN the counter filed by the second respondent/second defendant, it is alleged that though the petitioners pleaded in the plaint that no relief need to be prayed for as regards the decrees passed in both the suits, in an inconsistent manner they have sought for amendment. It is denied that the plaintiffs were not served with summons in the previous proceedings and thus the petition has been filed belatedly. The petitioners have not filed any application to set aside the ex -parte decree passed in O.S.No.178 of 1994. The third respondent took the property in Court sale in E.P.No.41 of 2000 and on 31.7.2004, the delivery was also effected in his favour. Further, the petitioners and the first respondent filed I.A.No.251 of 2002 to set aside the ex -parte decree passed on 31.3.1998 in O.S.No.215 of 1997, along with the application for condoning the delay of 1570 days. The said petition was dismissed on 10.1.2003 and the petitioners very well knew about the filing of the application and the Court proceedings. The amendment application is barred by time. Hence, the petition has to be dismissed.