The main legal point established in the judgment is the requirement to prove sufficient cause for delay and knowledge of the decree when filing an application to set aside an exparte decree.

(Prayer: This Civil Revision Petition is preferred under section 115 of C.P.C to set aside the order dated 17.11.2003 made in I.A.No.895 of 2003 in O.S.No.157 of 2000 passed by the Prinicipal District Munsif, Thoothukudi.)

This Revision has been filed against the order of dismissing the application for condonation of delay of 753 days in filing the petition to set aside the exparte decree.

2. The suit was filed by the first respondent against 7 defendants for declaration that the suit property belongs to him absolutely and for other reliefs. The petitioners are defendants 3 and 4. The first respondent/plaintiff is the son of A.M.M.S.Ganesa Nadar and the 2nd and 3rd respondents are his Brothers. The 4th and 5th respondents are son of the 2nd respondent, and 6th respondent is the son of the 3rd respondent.

3. In order to obtain a declaration that he is in absolute possession and enjoyment of the property, the suit was initiated. An exparte decree was passed on 16.3.2001. The petitioners filed an application under Section 5 of Limitation Act for condoning the delay of 753 days in filing the application to set aside the exparte decree. The first respondent contested the application along with the respondents 2 to 6. The court below came to the conclusion that the petitioners had not given sufficient cause for the delay. Before the court below documents have been marked and witnesses were also examined by the petitioners.

4. The learned senior counsel appearing for the petitioners would submit that though the petitioners filed an application under Section 5 of Limitation Act, since they had demonstrated clearly that summons were not duly served, then the court below ought to have condoned the delay. The learned senior counsel referred to the evidence of P.W.1 and P.W.2, namely, the second petitioner and the process server, respectively to show that summons were not duly served on the defendants.

5. The learned senior counsel would refer to the decision rendered in Sushil Kumar Sabharwal Vs. Gurpreet Singh and others (A.I.R.2002 Supreme Court 2370), wherein it was held that when there was no service of summons, it could not be said that the defendant had the knowledge of exparte decree and that knowledge of pendency of suit is not the same as knowledge of date of hearing, as per order 9 Rule 13 C.P.C.

6. The counsel for the first respondent would submit that even if the court were to accept that there was no service of summons it is clear from the evidence that they had knowledge of the decree even in January 2003 and yet they did not file an application in June 2003 and therefore, the Court below was right in concluding that sufficient cause for the delay was not made out.

7. The learned counsel relied on several decisions in support of his case. The learned counsel also pointed out that in the affidavit filed in support of application a specific statement was made that exparte decree has been got due to fraud but fraud has not been established. The purchasers from the first respondent have filed the C.M.P.No.2827 of 2004 to implead themselves. This application was also listed along with the revision and the counsel was heard. The learned counsel for the impleading petitioners would submit that the petitioner's property and the respondent's property are adjacent to each other and therefore the petitioners cannot be heard to say that they had no knowledge.

8. According to the learned counsel, under Article 123 of the limitation Act, the petition should be filed within 30 days from the date of the decree or where the summons notice was not duly served on the applicant, from the date of knowledge of the decree. Having stood by watching a big construction come up next to their property, it is difficult to accept their case that they have no knowledge.

9.The learned counsel for the impleading petitioners referred to several decisions. Since the counsel for the respondents submitted that the original records should be summoned, rec