THANGARAJU AND OTHER Vs. LAKSHMI AND OTHERS

JUDGEMENT

(1.) The Civil Revision Petition has been filed to set aside the fair and final order dated 14.06.2016 passed in I.A.No.764 of 2015 in O.S.No.87 of 2000 on the file of the Sub-Court, Attur.

(2.) According to the petitioners/defendants, the respondents filed a suit in O.S.No.87 of 2000 for declaration and partition against the defendants on the file of the Sub-Court, Attur. The petitioners/defendants have filed the written statement in the aforesaid suit and thereafter, the petitioners were set ex-pare on 11.02.2005 and a preliminary exparte decree was also passed on the same day. Hence, the respondents filed I.A.No.177 of 2006 on 16.02.2006 for passing of final decree. The said application was dismissed for default on 07.08.2009. Subsequently, the respondents filed I.A.No.526 of 2013 seeking relief of passing of final decree and the same was posted on 23.07.2015 for filing counter. The Court below, on 23.07.2015, set the petitioners herein as exparte and appointed an Advocate Commissioner on the very same day for the division of 'A' schedule property. At this stage, the petitioners/defendants filed an application in I.A.No.764 of 2015 in the aforesaid suit under Section 5 of the Limitation Act to condone the delay of 3867 days in filing an application to set aside the preliminary exparte decree. In the affidavit filed in support of the said application, it is stated that while I.A.No.526 of 2013 was pending, Nallusamy, the first defendant died on 12.02.2014 and thereafter, the learned counsel for the petitioners/defendants, who appeared before the trial Court also died in the year 2015. Hence, the petitioners could not get any information prior to the filing of the present application. After knowing the fact that the preliminary exparte decree was passed against the petitioners, they filed I.A.No.607 of 2015 under Order 9, Rule 7 and section 151 of CPC. The Court below without considering the facts of the case, erroneously dismissed I.A.No.607 of 2015 and I.A.764 of 2015 by passing separate orders on 14.06.2016. Aggrieved by the order dated 14.06.2016 passed in I.A.No.764 of 2015, the present Civil Revision Petition has been filed.

(3.) The learned counsel for the petitioners submitted that the respondents filed O.S.No.87 of 2000 for declaration and partition against the petitioners and in the said suit, a preliminary exparte decree was passed on 11.02.2005. Hence, the respondents/plaintiffs filed I.A.No.526 of 2013. The Court below, without considering the case of the petitioners, erroneously dismissed the said application by setting the petitioners exparte. Therefore, the petitioners filed I.A.No.607 of 2015 in I.A.No.526 of 2013 in O.S.No.87 of 2000 to set aside the exparte decree passed in I.A.No.526 of 2013 in O.S.No.87 of 2000 on 23.07.2015 and also filed another application in I.A.No.764 of 2015 to condone the delay of 3687 in filing the application to set aside the exparte decree dated 11.02.2005. Hence, the learned counsel requested this Court to set aside the impugned order dated 14.06.2016 and to give an opportunity to put forth their contention on merits in the above said suit.