V. MANI Vs. T. GANESAN

JUDGEMENT

(1.) THE respondent is plaintiff in O.S. No. 138 of 1982, on the file of the District Munsif Court, Dindigul. He filed the suit for specific performance of contract against the petitioner's father by name Velan and obtained decree. The respondent filed E.P. No.8 of 2005, on the file of the District Munsif -Cum -Judicial Magistrate Court, Vedasandur for delivery of the property in pursuance of the decree passed in the suit. Pending the enquiry in the execution proceedings, this petitioner, son of the defendant Velan, filed an application in E.A. No.14 of 2006 under Order 21, Rules 97, 99 and 101, C.P.C. praying the Court to declare that the decree passed in O.S. No.138 of 1982 is null and void, the execution proceedings taken up by the plaintiff in E.P. No.6 of 2001 for execution of sale deed against his father, is void ab initio, to declare that the properties belong to him and also for a permanent injunction restraining the plaintiff from interfering with his enjoyment of the properties mentioned in O.S. No.138 of 1982.

(2.) WHEN the hearing in E.A. No.14 of 2006 was posted on 16.3.2006, the plaintiff who had to appear, however, he did not appear and hence, the Court set him ex parte and the second respondent in the E.P., the defendant Velan, expressed that the petition in E.A. No.14 of 2006 may be allowed and hence, the said E.A. was allowed on 16.3.2006. Thereafter, the respondent/plaintiff filed an application in E.A. No.52 of 2006 to set aside the ex parte decree passed on him on 16.3.2006. The said petition was filed on 12.6.2006. In spite of resistance by the petitioner herein, the above -said petition was allowed. Challenging the order passed by the executing Court setting aside the ex parte order against this respondent, the petitioner is before this Court.

(3.) IN the affidavit, the respondent herein has affirmed that on 16.3.2006, E.A. No.14 of 2006 was posted for hearing, for which he had to appear but he was unable to attend the Court since he was affected by Typhoidal Fever, that on the later date, he came to the Court and enquired the Court staff, informed him that he was set ex parte on 16.3.2006 and that his absence was neither wilful nor wanton and it was by act of God. Hence, it is prayed that the ex parte order may be set aside.