VELU GOUNDER Vs. DHANASEKARAN

JUDGEMENT

(1.) THIS revision has been preferred by the petitioners, who were the defendants 2 and 3 before the lower Court, against the dismissal of the application filed by them for condonation of the delay of 387 days caused in filing the application to set aside the exparte decree passed against them.

(2.) THE respondents herein, as plaintiffs, filed the suit in O. S. No. 43 of 2004 before the lower Court for partition and for removal of the encrouchments against the defendants. The revision petitioners are the defendants 2 and 3 in the suit. Since the written statement of the petitioners herein/d2 and D3 was not filed, the suit was decreed exparte against the defendants 2 and 3 / revision petitioners herein while a contested decree was passed against the 1st defendant. There was a delay of 387 days in preferring the application to set aside the exparte decree and judgment of the lower Court. Hence, the petitioners/d2 and D3 filed an application to condone the delay of 387 days in filing the application to set aside the exparte decree. The lower Court after hearing the arguments advanced on the side the petitioners, dismissed the said application, which necessitated the petitioners to prefer this Revision.

(3.) THE averments in the application filed by the petitioners herein/d2 and D3 are as follows:- The petitioners/defendants 2 and 3 appeared before the lower Court through counsel and the case was posted before the lower Court on 17. 02. 2005 for filing written statement and since no written statement was filed on that day, they were set exparte. The petitioners could not contact their counsel on that day as they had already left the suit village for their livelihood to Madras and therefore, the letter written by the counsel did not reach the petitioners and the address of the petitioners at Madras was also not known to the petitioners' lower Court counsel and when the petitioners came to the native place on personal grounds, the execution proceedings notice was served upon the petitioners and then only they could understand the real situation and the passing of exparte decree against them. However, in the meanwhile, the delay of 387 days had been caused in filing the application to set aside the exaprte decree and therefore, the said delay has to be condoned. Hence, they sought for condonation of delay in preferring an application to set aside the exparte decree.