R RADHA Vs. N R SARASWATHI

JUDGEMENT

(1.) THIS petition is filed under Section 5 of the Limitation Act, to condone the delay of 2144 days in filing the appeal against the ex parte decree passed in O.S.No.4683 of 1982 on the file of the XI Assistant Judge, City Civil Court, Madras. It is averred in the affidavit filed in support of the petition that the respondent filed the suit O.S.No.4683 of 1982 for specific performance of sale to her of the half share of the suit property bearing premises No.414 Raja Naicken Thottam, Vannia Teynampet, Madras. She was not at all served with summons in the said suit and the respondent managed to have the suit summons not served on her land obtained an ex parte decree on 9th November, 1982. After obtaining the ex parte decree, the respondent filed C.P.No.1440 of 1983, for execution of the ex parte decree for getting sale deed. The petitioner was served with notice in the said execution petition. Thereafter, she came to know of the passing of the ex parte decree. She filed an application under Section 5 of the Limitation Act in I.A.No.3465 of 1984 and it was dismissed, though she was not at all served .with the suit summons and the service of summons was effected by substituted service. As against the same, she was advised to file a revision. She filed C.R.P.No.4262 of 1984 before this Court and the same was dismissed on 7th August, 1985. The respondent filed another execution petition in E.P.No.2022 of 1985 for possession. The petitioner filed E.A.No.5215 of 1985 under Section 47, CP.Code, to declare that the decree in O.S.No.4683 of 1982 was not a valid one and not binding on her. The said execution application was also dismissed. As against the said order, she filed C.R.P.No.542 of 1986 before this Court and it was dismissed on 22nd July, 1988. It is further stated that she is an illiterate woman without any help. She had not the timely help and advice from her lawyers who were attending to her case in various stages. In a nutshell, she stated that she suffered from illiteracy and lack of proper legal advice and guidance. It is further stated that she has engaged another counsel after getting the papers from the previous counsel. Only now she has come to know of the real position. She has obtained certified copies of the ex parte decree and judgment and filed the appeal with this petition to condone the delay of 2144 days in filing the appeal. Hence, she prayed for condonation of the delay.

(2.) THE said application is resisted by the respondent who denied the allegations. In her counter-affidavit it is inter alia averred as follows. It is stated that the very appeal is incompetent by reason of the fact that what was sought to be set aside was an ex parte decree which has become final when C.R.P.No.4262 of 1984 was dismissed on 7th August, 1985. Further, so far as the execution of the decree is concerned, it has been duly executed and possession was also effectively delivered in E.P.No.2022 of 1985, even on 6th September, 1985 itself after execution of the sale deed. This Court in C.R.P.No.2305 of 1986 has recorded the factum of delivery of possession in the order dated 21st January, 1987 and dismissed the application for stay. Ultimately, C.R.P.No.542 of 1986 was dismissed on 22nd July, 1988. THE said C.R.P.No.542 of 1986 arose out of the petition in E.A.No.5215 of 1983, filed by the very same petitioner for declaring that the decree is not a valid one and binding, which was also dismissed. Thus, it is clear that the decree in question has been the subject matter for consideration before the trial court under Section 47, CP.Code and thereafter before the High Court. Thus it has become final and it is binding on the respondent. She cannot seek to reopen the issue by filing a regular appeal against the ex parte decree. It is further alleged that it cannot be said that there was an improper or illegal advice when the matter was adjudicated upon already upto this Court. But, on the other hand, the affidavits filed in the earlier proceedings would amply show that she had at, all material point of time engaged advocate and was prosecuting the matter diligently. Under these circumstances of the case, the delay 2144 days, which remains unexplained, cannot be condoned and the petitioner is now trying to shield her own follies by throwing the blame on her advocates who appeared for her. Further, the present attempt to reopen the issue by filing a regular appeal is barred by res judicata in view of the petition filed under Section 47, C.P.Code. THE petitioner has not at all explained each day�s delay and particularly the inordinate delay of 2144 days. It is further stated that the petition has resorted to violence and caused damages to the hut and the fences put up by the respondent after delivery of possession and the matter is now pending investigation on a complaint given by the respondent against the petitioner and her men, and this present attempt is only to drag on the issue and get over the criminal prosecution. THE present application is nothing but an abuse of the process of court and hence it is liable to be dismissed.

(3.) THE learned counsel for the petitioner drew the attention of this Court to various decisions in support of his contention. In State of West Bengal v. Howrah Municipality, (1972)2 S.C.J. 43: A.I.R. 1972 S.C 749, it was held: