Defendant challenged dismissal of his application to condone 2190 days' delay in setting aside an ex parte decree in a specific performance suit, citing paralysis and bedridden condition. The High Court found he had appeared through counsel and filed counter in the execution proceedings in 2018, so knew of the decree. Revision dismissed.
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C.R.P(MD)No.596 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2025
CORAM :
THE HONOURABLE Mr. JUSTICE G.ILANGOVAN
C.R.P(MD)No.596 of 2024 and C.M.P(MD)No.2966 of 2024
Anand
... Petitioner / Defendant
Vs
Chandhra Albert Jawahar ... Respondent / Plaintiff
Prayer : This Civil Revision Petition is filed under Section 115 of C.P.C, to call for the records relating to the fair and decreetal order passed by learned II Additional Sub Court, Nagercoil, in I.A.No.1 of 2023 in O.S.No.176/2016 dated 18.01.2024 and the set aside the same.
For Petitioner : Mr.K.P.Narayanakumar
For Respondent : Mr.G.Aravinthan
ORDER
This Civil Revision Petition is filed to to call for the records relating to the fair and decreetal order passed by learned II Additional
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Sub Court, Nagercoil, in I.A.No.1 of 2023 in O.S.No.176/2016 dated 18.01.2024 and the set aside the same.
filed by the plaintiff namely the respondent herein against the revision petitioner seeking the relief of specific performance stating that on 12.12.2014 there was a sale agreement between the parties by which the sale consideration was fixed at Rs.3.25 Lakhs and advance amount of Rs.3 Lakhs was paid and sale agreement was registered. The time for performance of the contract was fixed as 18 months. Since the revision petitioner did not come forward to execute the sale deed the suit was filed. The revision petitioner entered appearance and filed written statement stating that the sale agreement was not really intended to be acted upon sale agreement. It was only a loan transaction. Because of his failure to appear before the trial Court, ex parte decree was passed. To set aside the ex parte decree, he filed a petition in E.A.No.1 of 2023 under Section 5 of the Limitation Act to condone the delay of 2190 days with the following averments:
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He was affected by Paralysis and he was completely bedridden. Only when he received the notice in E.A.No.1 of 2023, he came to know about the passing of the ex parte decree. So because of that there is a delay of 2190 days. That was resisted by the respondent herein by filing counter stating that the entered appearance in E.P.No.91 of 2017 through his advocate. After that only sale deed was executed by the Court in his favour. Since the revision petitioner appeared in the execution petition, even in 2018 itself, the reason assigned is not proper and acceptable. After hearing both sides, the trial Court recorded a finding that having known the passing of the ex parte decree, at the time of appearance, in the execution proceedings, he failed to file a proper petition immediately. Considering the lapses committed by the revision petitioner the execution Court dismissed the petition. Against which this Civil Revision Petition is preferred.
sustained the grounds mentioned in the petition, but he has no answer for not filing petition after entering appearance in the execution petition in 2018 itself.
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C.R.P(MD)No.596 of 2024
07.01.2025
NCC :Yes/No Index :Yes/No Internet : Yes/ No pnn
To
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C.R.P(MD)No.596 of 2024
G.ILANGOVAN, J.
pnn
ORDER IN C.R.P(MD)No.596 of 2024
07.01.2025
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1 issue framed by the court
Whether the trial court rightly refused to condone a delay of 2190 days in filing an application to set aside an ex parte decree, given the petitioner's appearance in the execution proceedings in 2018
2 provisions across 2 enactments
Anand
Chandhra Albert Jawahar
G. Ilangovan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
