Defendant challenged dismissal of her application to restore a condonation-of-delay petition seeking to set aside an ex parte decree in a specific performance suit. The High Court held the restoration application was filed in time, set aside the impugned order, and directed the trial Court to dispose of the delay application on merits.
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C.R..P.(NPD)(MD).No.602 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(NPD)(MD)No.602 of 2025 and
C.M.P(MD) No.3294 of 2025
M.Eswari
... Petitioner/Petitioner Petitioner/Defendant
Vs. M.Jeeva ... Respondent/Respondent Respondent/Plaintiff
PRAYER: Civil Revision Petition filed under Section 115 of C.P.C, seeking to set aside the fair and decretal order passed by the Sub Court, Theni made in I.A.No.3 of 2022 in I.A.No.2 of 2021 in O.S.No.137 of 2017, dated 26.09.2022.
For Petitioner : Mr.B.Fazil Kirmani For Respondent : Mr.P.Siva Chandran
O R D E R
The defendant in O.S.No.137 of 2017 on the file of the Sub Court, Theni, has filed the present Civil Revision Petition, challenging the dismissal of her application in I.A.No.2 of 2021 wherein, the trial Court has dismissed
the application filed under Order IX Rule 9 of C.P.C.
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2. The defendant suffered an ex parte decree in a suit for specific performance on 06.09.2018. The defendant had filed I.A.No.2 of 2021 under Section 5 of Limitation Act, to condone the delay of 439 days in filing an application to set aside the ex parte decree. This application was dismissed for default on 16.03.2022. The defendant had filed I.A.No.3 of 2022 under Order IX Rule 9 of C.P.C, to restore I.A.No.2 of 2021. The said application has been dismissed by the trial Court on the ground that the defendant has not properly explained the reason for her non-appearance on 16.03.2022. Challenging the same, the present Civil Revision Petition has been filed.
3. According to the learned counsel appearing for the revision petitioner, I.A.No.3 of 2022 has been filed in time and therefore, the application ought to have been allowed and the defendant should have permitted to contest I.A.No.2 of 2021 on merits.
4. Per contra, the learned counsel appearing for the Caveator/Plaintiff had contended that there is a already delay of 439 days in filing an application under Order IX Rule 13 of CPC,. Only after receipt of notice in the execution proceedings, belatedly the present application has been filed.
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5. Heard both sides and perused the material on records.
6. The application to restore I.A.No.2 of 2021 has been filed in time. Considering the fact that the suit is for specific performance, this Court is inclined to set aside the order impugned in the Civil Revision Petition.
7. Accordingly, this Civil Revision Petition stands allowed. The trial Court is directed to dispose of I.A.No.2 of 2021 on merits and in accordance with law on or before 30.06.2025 . There shall be no order as to costs. Consequently connected Miscellaneous Petition stands closed.
03.03.2025
NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi To
1. The Sub Court, Theni
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C.R..P.(NPD)(MD).No.602 of 2025
R.VIJAYAKUMAR,J.
ebsi
C.R.P(NPD)(MD)No.602 of 2025
03.03.2025
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1 issue framed by the court
Whether the trial Court rightly dismissed the application to restore the condone-delay petition for setting aside an ex parte decree in a specific performance suit?
4 provisions across 2 enactments
M.Eswari
M.Jeeva
R.Vijayakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
