Decided on August 26,2003

Thomas P Abraham Appellant
Aleyamma Abraham Respondents


- (1.) Appellants and petitioners are the same. They are petitioners in I.A. Nos. 831, 832, 833 and 834 of 1998 in O.S. No. 107 of 1994 on the file of the Sub Court, Thiruvalla. They claim to be legal representatives of deceased original defendant in the suit. Suit was instituted by the respondent daughter for specific performance of an oral agreement for sale against her father.
(2.) Plaintiffs case is that while she was in U.S.A. she used to send money and with that amount plaint schedule property was purchased and building was constructed in the plaint schedule property. She came to the native place on 20.5.1994 and stayed with the father and at that time father had orally agreed that the plaint schedule property would be sold to her for an amount of Rs. 1 lakh and she had paid Rs. 1 lakh, but no sale deed was executed in spite of repeated requests. Consequently Suit for specific performance was instituted. Defendant could not file written statement and was set ex parte on 1.7.1995 and later an ex parte decree was passed on 13.7.1995.
(3.) The defendant on 22.12.1995 filed I.A. No. 166 of 1995 for setting aside the ex parte decree and I.A. No. 1668 of 1995 for condoning the delay in filing that petition. However, those petitions were dismissed for default on 13.1.1998. Defendant could not take any steps to set aside those orders and he died on 8.7.1998. First appellant, his son, who was also in the U.S.A. came to attend the funeral of his father got information regarding the suit. He had also noticed that the plaint schedule property was settled in his favour by the father as per settlement No. 462 dated 7.3.1996, and ten cents out of the plaint schedule property was settled in favour of the second appellant as per document No. 475 dated 11.3.1996 and accordingly appellants alone have got right over the plaint schedule property. Appellants then filed I.A. No. 834 of 1998 to get themselves impleaded. They also filed I.A. Nos. 831 and 833 of 1998 for restoration of I.A. Nos. 1666 and 1668 of 1998 respectively. They also filed I.A. No. 832 of 1998 for condoning the delay in filing the application for setting aside the ex parte decree. They explained the circumstances under which the suit happened to be decreed ex parte and also stated the reason for not prosecuting the application for setting the aside the ex parte decree. On the side of the appellants PWs.1 to 3 were examined and Exts. A1 to A3 were marked. On the side of the defendants R.Ws. 1 to 3 were examined. The court below after considering the oral and documentary evidence dismissed all those petitions holding that the appellants have failed to show sufficient cause for setting aside the ex parte order as well as the ex parte decree and also the order dismissing the application for condoning the delay. Aggrieved by those orders, these appeals and revision petitions have been filed.;

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