PALANIVEL Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) This civil revision petition is filed by the plaintiff in O.S. No. 674 of 2004 on the file of the I Additional District Munsif, Virudhachalam. He is aggrieved against an order passed under section 5 of the Limitation Act in condoning the delay of 1329 days in filing petition to set aside the ex parte decree. The respondents herein as the defendants filed the said application in I.A. No. 47/2012. The court below allowed the application and thus, the present civil revision petition is filed by the petitioner/plaintiff. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.

(2.) The petitioner filed the said suit seeking for declaration of his easementary right and also for mandatory injunction for removal of the wall put up in the suit property. In the said suit, an ex parte decree came to be passed on 11.03.2008. Consequently, the petitioner filed an execution petition in E.P. No. 130 of 2010 seeking to execute the said ex parte decree. In the said E.P., notice was served on the defendants on 27.07.2010. The defendants entered their appearance in the execution proceedings. But, they have not filed any counter. On 29.10.2010, an ex parte order came to be passed by the Executing Court. The defendants filed an application to set aside the ex parte order and the same was allowed on 15.03.2011. Thereafter, the E.P. was ordered, after contest on 30.01.2012. On the same day, the defendants filed I.A. No. 47/2012 seeking to condone the delay of 1329 days in filing the petition to set aside the ex parte decree passed on 11.03.2008. An affidavit was filed in support of the said application wherein it is stated that they were not informed about the ex parte decree by their previous Government Advocate and they came to know about such ex parte decree only later at the time of filing the said application and based on the advise of the present Government Pleader, they filed the said application under section 5 of the Limitation Act. The court below accepted the said contention and allowed the application subject to payment of cost of Rs. 2,500/- to the petitioner herein.

(3.) Going by the facts and circumstances of the case as well as the dates and events which are not in dispute, I find that the order passed by the court below in condoning the delay of 1329 days is not just and proper and not based on any sufficient cause shown by the defendants.