N.BASKARAN Vs. D.GEETHA

JUDGEMENT

(1.) THIS intra Court appeal is preferred against the order of learned single Judge in D.No.40597 of 2011 in C.S.No.340 of 2010 (14.2.2012) directing the Appellants-Defendants 1 to 3 to file appropriate application to condone the delay in filing the application to set aside the exparte decree dated 28.09.2011. Appellants are Defendants 1 to 3 in the suit.

(2.) BRIEF facts:- Suit property six grounds in T.S.No.7085/1 and 7085/2 of Thiyagaraya Nagar, Chennai originally belonged to C.P.Natesa Mudaliar, who died intestate on 04.01.1974 leaving behind his wife and children as under:- <FRM>JUDGEMENT_54_TLMAD0_2013html1.htm</FRM> Case of Respondent-Plaintiff is that all the legal heirs of C.P.Natesa Mudaliar agreed to sell the suit property to the Respondent and received advance amount through N.T.Arasu, elder son of the family. It is the case of Respondent that she purchased one-fourth undivided share of the suit property from N.T.Arasu under sale deed dated 27.01.2005 (Document No.175 of 2005 on the file of S.R.O. T.Nagar). Respondent approached Appellants for division of her one-fourth share and even though Appellants initially agreed, they delayed the division saying one reason or other. Therefore, Respondent filed the suit C.S.No.340 of 2010 for partition and separate possession of her one-fourth share. In the suit Appellants were shown to be represented by Power of Attorney M.Srinivasan. Suit summons were served upon the Appellants through their Power of Attorney M.Srinivasan. In the suit Appellants did not appear and they were set exparte and exparte decree was passed on 28.09.2011.

(3.) THE learned single Judge held that the allegations made against the power agent are good enough for condoning the delay and to set aside the exparte decree. However, that cannot be accepted as a valid reason to come to the conclusion that Appellants had knowledge only on 09.11.2011 and directed the Appellants to file an appropriate application. Being aggrieved by the said order (14.02.2012), Appellants have preferred this appeal.