N KATHIRVEL Vs. N KALIMUTHU GOUNDER

JUDGEMENT

(1.) THE revision petitioner/petitioner/first defendant has filed this civil revision petition as against the order dated 14. 02. 2008 in I. A. No. 231 of 2007 in O. S. No. 488 of 1999 passed by the Learned Principal Subordinate Judge, coimbatore in dismissing the application filed under Section 5 of the Limitation act, praying to condone the delay of 268 days in filing the application to set aside the exparte decree dated 03. 01. 2006.

(2.) THE trial Court while passing orders in I. A. No. 231 of 2007 has among other things observed that 'on 03. 01. 2006 after full trial a decree has been passed, based on an appreciation of oral and documentary evidence adduced on both sides and it transpires from records that on 20. 09. 2005 the revision petitioners/first defendants, Advocate has reported no instructions and hence revision petitioner/first defendant has been called absent and set exparte decree etc. , and also that no explanation has been offered for each and every day's delay and inasmuch a decree has been passed after full contest and trial of the case an application filed is not maintainable and ultimately dismissed the same without costs".

(3.) ACCORDING to the learned counsel for the revision petitioner/petitioner/first defendant the order of the trial Court in dismissing the Section 5 application of the Limitation Act, is contrary to law and the same is without jurisdiction and as a matter of fact an exparte decree has been passed totally without the knowledge of the petitioner only on the basis of memo dated 20. 09. 2005 filed by the then counsel on record and hence the delay that has occurred is neither on account of the petitioner's negligence or deliberate intention on his part and this important aspect has not been appreciated by the trial Court and the revision petitioner has come to know of the exparte decree only when he has received notice in Execution Petition No. 374 of 2006 and soon filed an application and even in the written statement filed by the revision petitioner/first defendant he has stated that he has settled the suit property in favour of his wife on 15. 03. 1999 and that the suit has been filed in April 1999 and because of these reasons the plaintiff themselves have impleaded the wife of the revision petitioner and her purchasers as party to the suit and these aspects have not been adverted to by the trial Court in a pragmatic manner which has caused serious prejudice to the petitioner and therefore prays for allowing the civil revision petition to promote substantial cause of justice.