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Madras High CourtCRP/4191/2010dismissed

Jayakannu v. Padmavathi

2018-09-04Honourable Ms. Justice P.T. Asha4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 04.09.2018 Coram The Honourable Ms.Justice P.T.ASHA C.R.P.(NPD).No.4191 of 2010 and M.P.No.1 of 2010 1.Jayakannu 2.Manickavasagam .. Petitioners

Versus

Padamavathi .. Respondent Prayer:

Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 18.08.2010 made in I.A.No.60 of 2009 in O.S.No.34 of 2007 on the file of the Sub Court, Nagapattinam.

For Petitioners : Mr.V.Chandrasekaran For Respondent : Mr.A.Muthukumar

O R D E R

The above Civil Revision Petition is filed challenging the order passed by the Subordinate Judge, Nagapattinam, in I.A.No.60 of 2009 in O.S.No.34 of 2007 in and by which the application filed by the

revision petitioners for condoning the delay of 553 days in filing application to set aside the ex-parte decree was dismissed. Given below is a total of the dates and events which would succinctly put across the facts and perspective.

SL.No.

Date Events 14/05/2007 Date of filing of O.S.No.34 of 2007 08/06/2007 Hearing of the Suit. Summons for the 1st defendant affixed as gone to Thirumarugal. Summons to 2nd defendant was returned as refused. Service to 2nd defendant was held to be sufficient and 2nd defendant was called absent and set ex-parte 10/08/2007 Hearing of the Suit. 1st defendant was served. Called absent and set ex-parte 18/08/2007 Posted for ex-parte evidence 21/09/2007 Ex-parte preliminary decree was passed 21/06/2008 Hearing of final decree application in I.A.No.13 of 2008. Notice to 1st respondent was served. Notice to 2nd respondent was affixed.

08/07/2008 Service was held to be sufficient for both defendants. Advocate Commissioner was appointed for suggesting mode of division.

31/10/2008 Advocate Commissioner issued notices 06/04/2009 Advocate Commissioner issued notices 13/04/2009 Commissioner visited the suit property 27/04/2009 Application to set aside ex-parte preliminary decree and condone delay petition were filed.

From a perusal of the above dates and events, it is clear that the second respondent has displayed absolute apathy to the summons of Civil Court, not once, but twice, and followed by his inactivity, even after receiving the first notice from the Advocate Commissioner on 31.10.2008. Despite these, the revision petitioners have in their

affidavit filed in support of the impugned petition stated that summons had not been served on them. This had been the reason adduced for seeking to have the decree to be set aside and delay condoned as narrated supra. Summons have been served on the first revision petitioner and it was refused by the second revision petitioner which implies knowledge about the proceedings.

2. I do not find any infirmity in the order of the learned subordinate Judge, Nagapattinam. Since, condonation of delay and setting aside ex-parte decree is not a matter of right, but has to be established with convincing reasons by the revision petitioner on the contrary, false reason for the delay has been averred in the affidavit filed in support of the impugned petition.

3. In the result, the civil revision petition is dismissed. Consequently, connected miscellaneous petition is Closed. 04.09.2018 at/dua Speaking Order/ Non Speaking Order Index: Yes/ No

P.T.ASHA.J.

AT To The Sub Court, Nagapattinam.

C.R.P.(NPD).No.4191 of 2010 04.09.2018