K SUBBIAH Vs. PON GANGADHARAN

JUDGEMENT

(1.) The Petitioner is the defendant in the suit in O.S.No.47 of 2012 on the file of the learned III Additional District Court, Tirunelveli filed by the respondent herein for specific performance stating that the petitioner and respondent entered into an agreement of sale in respect to suit property and paid Rs.17,75,000 out of sale consideration of Rs.20,00,000, however the defendant did not come forward to execute the sale deed. The Petitioner has filed written statement through an Advocate Mr.R.M.Suresh admitting the amount received but pleading that the said amount was received as a loan for interest, to settle the bank loan and the agreement of sale was executed only a security for the above loan amount.

(2.) As the petitioner did not appear in the trail of the suit ex-parte decree was passed and he filed the petition to set-aside the ex-parte decree along with a petition in I.A.No.206 of 2016 to condone the delay of 835 days in filing the petition to set-aside the ex-parte decree stating that after receipt of notice in the EP he contacted the counsel Mr.R.M.Suresh, who received Vakalat but did not appear in the same. But later on came to know that in the E.P. also he was set ex-parte as the Counsel did not file Vakalat and ex-parte order passed. At that juncture he got the bundle and engaged another advocate and also filed a petition to set aside ex-parte order passed in the EP and as well as ex-parte decree passed in the suit. The Petitioner has stated that the delay of 835 days in filing the petition was due to the earlier counsel's failure to inform and also due to his illness of jaundice.

(3.) The respondent contested the said application stating that the suit agreement was true and since the execution of agreement was admitted the petitioner/defendant directed to however he did not appear. Hence the evidence was closed. Thereafter the respondent/plaintiff examined himself and ex-parte decree was passed on 25.10.2013. After filing the execution petition, also the petitioner/defendant appeared through the Counsel but did not file counter. Hence executed petition dismissed as ex-parte but there is no acceptable reason for condoning the delay of 835 days. The Learned Judge after considering that dismissed the petition.