K LAKSHUMANAPERUMAL Vs. SARDHAR SHERIFF

JUDGEMENT

(1.) THE petitioner is plaintiff in O.S.No.125 of 2005 on the file of the Sub-Court, Salem, who filed the suit against the respondent for specific performance of contract on the basis of an agreement of sale reportedly executed by the respondent. THE suit was decreed ex parte on 28.06.2005 and the respondent levied execution proceedings in R.E.P.No,303 of 2005 for execution of sale deed and in the said proceedings also the respondent remained ex parte and the sale deed was executed by the Court and thereafter he filed another petitioner in R.E.P.No,76 of 2007 for delivery of the property in pursuance of the sale deed executed by the Court and in that R.E.P. also the respondent remained ex parte and delivery was ordered, effected and thereafter recorded. THEn the E.P. got terminated on 12.07.2007.

(2.) DURING the above said execution proceedings, the respondent filed petition in I.A.No,21 of 2008 to set aside the ex parte decree in O.S.No.125 of 2005 passed on 20.8.2006, along with an application to condone the delay of 361 days in filing such application in I.A.No,207 of 2007 under Section 5 of the Limitation Act. The said petition was dismissed by the learned Principal Subordinate Judge, Salem and he preferred revision before this Court in CRP NPD No,3482 of 2007 and this Court on 05.12.2007 allowed the Civil Revision Petition condoning the delay of 356 days (subsequently corrected). Then I.A.No,21 of 2008 was taken for enquiry, which was hotly contested by this petitioner. Both sides adduced evidence oral and documentary and eventually the learned Principal Subordinate Judge, allowed the application setting aside the ex parte decree on 28.06.2005. This order is being carried before this Court in the present revision.

(3.) THE learned Principal Subordinate Judge, Salem allowed the application by observing that the evidence of Junior Bailiff, who was deputed to effect service of summons on the defendant, did not deliver it properly, rendering his service invalid and hence ex parte decree has to be set aside.