BANUMATHY (DIED) AND OTHERS Vs. MADURAI

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the fair and decretal order dated 24.12.2012 made in I.A.No.545 of 2012 in O.S.No.886 of 2004 on the file of the Additional District Munsif, Poonamallee.

(2.) The petitioners are the defendants 2 to 6 and respondent is the plaintiff in O.S.No.886 of 2004 on the file of the Additional District Munsif, Poonamallee. The respondent filed the said suit for partition against one K.Manickam, petitioners and three others, who are the purchasers of the property. The respondent is one of the sons of Kanniappa Chetty, the first defendant K.Manickam is another son. The petitioners are legal heirs of K.Egambaram, the third son of Kanniappa Chetty. According to the petitioners, the first defendant K.Manickam who was retired Tahsildar was conducting the case on behalf of himself and on behalf of the petitioners. The first defendant died. His legal heirs were impleaded as defendants 10 to 13. The petitioners had bonafide belief that after death of first defendant, K.Manickam, his legal heirs, the defendants 10 to 13 are conducting the case. The first petitioner is a widow and the petitioners 2 to 5 are her children. The petitioners came to know that defendants 10 to 13 did not conduct the suit and petitioners and defendants 10 to 13 were set exparte and exparte preliminary decree was passed on 20.02.2012. The petitioners filed I.A.No.545 of 2012 to condone the delay of 77 days in filing the petition to set aside the exparte preliminary decree.

(3.) The respondent filed counter affidavit and denied all the averments made in the affidavit filed in support of the above application and contended that the decree is not an exparte decree. The defendants 7 to 9 contested the suit and preliminary decree was passed on merits. It is not correct to state that first defendant was looking after the case. He is only a formal party to the suit and prayed for dismissal of the application.