N. NAGESH Vs. B.M. POORNACHANDRAN AND ORS.

JUDGEMENT

(1.) This revision petition arises against the fair and final order dated 6.11.2017 passed in I.A. No. 288 of 2016 in O.S. No.41 of 2007 on the file of learned District Judge of Nilgiris at Udhagamandalam.

(2.) The learned counsel for the petitioner would submit that the respondents 1 and 2 have filed a suit in O.S. No.41/2007, on the file of the District Court, Uthagamandalam seeking for the relief of specific performance against the deceased/ 1 and 2 defendants and the 3rd respondent herein. According to the petitioners, preliminary decree has been passed in the suit and final decree also came to be passed. The petitioner's father has filed E.P. No.9 of 2005 for the sale of mortgage property and the said Execution Petition is pending. The 1st defendant died during the pendency of the suit. Therefore, the respondents 1 and 2 herein filed an application in I.A. No.184/2016 to condone the delay in taking steps implead the legal representatives of the 1st defendant. The District Judge, Uthagamandalam allowed the said application. Thereafter, the respondents 1 and 2 herein filed an application in I.A. No.288/2016 to set aside the abatement of the suit and the same was also allowed on 06.11.2017. It is the specific case of the petitioner that the application to set aside abatement and bring on record the legal heirs of the 1st defendant, has been filed only from 09.04.2015 to 09.06.2016. While allowing the application filed by the respondents 1 and 2, the court below has held that the application to condone the delay of 426 days is allowed. Therefore, the consequential application in I.A. No.224 of 2016 for impleading the legal representatives was allowed. Challenging the aforesaid order in I.A. no. 288 of 2016, the revision petitioner/ 4th defendant has filed this revision before this Court.

(3.) According to the petitioner, the court below has erroneously allowed the application to set aside the abatement of the suit, stating that it is only a consequential petition and the same has to be allowed. The Court below should not mislead the petition filed under Order 22, Rule 9 of the Code of Civil Procedure. The court below ought to have rejected the application, when the respondents 1 and 2 herein have not filed an application to condone the delay for the subsequent period from 10.07.2015 till the date of the application to set aside abatement. Therefore, the order of the court below is liable to be set aside.