Distinction between three years ex-parte decree or ex-parte order explained.

This revision is preferred against the Fair and Decretal Order made in I.A.No.540/2001 in I.A.No.283/2001 in O.S.No.34/2000 dated 2.11.2001 by the Subordinate Judge, Maduranthakam, dismissing the petition filed under Or.9, R.7 CPC declining to set aside the exparte order to appointment of Receiver passed in I.A.No.283/2001.

2.The Plaintiffs/Defendants 1 and 2 - sons of D-3 – Raja Ram Reddiar, claim that the suit properties 'A to E' schedule properties are the ancestral properties. The Plaintiff has filed the suit O.S.No.34/2000 for partition and allotment of 1/4th share. The suit property relates to a number of items of immovable properties comprised in A to E Plaint Schedule Properties.

3.Defendants 1 to 3 have filed Written Statement. D-1 has filed the Written Statement contending that the Preliminary Decree for partition could be passed in respect of the suit properties excepting 'B' Schedule Property, which is to be allotted as three equal shares and 'C' schedule in four equal shares and that D-1 is entitled to 1/3rd share in 'B' Schedule and 1/4th share in 'C' Schedule. D-2 has filed Written Statement stating that the suit may be decreed as prayed for and that the second Defendant may be allowed 1/4th share. D-3 has filed Written Statement contending that the suit item numbers 27 to 30 viz., dry S.No.311/6, 311/7, 311/8 and 311/13 are the absolute and self acquired properties of D-3. D-3 has purchased those items under Sale Deeds dated 30.10.1977 and 25.5.1983. Since the date of purchase, D-3 is in exclusive possession and enjoyment of those items and he has also made improvements. Hence the Plaintiff is not entitled to suit items 27 to 30. D-3 is entitled to 1/4th share regarding the other items of properties.

4.I.A.No.230 of 2000:-

As per order in this application, Receiver was appointed to manage the plaint schedule property 'A' and 'B'.

5.I.A.No.283 of 2001:-

This application was filed to appoint an Advocate Commissioner to take charge of 'D' Schedule property. 'D' Schedule Property relates to Door No.28, South Bagh Road, T. Nagar Madras-17.

6.Application was taken up on 19.4.2001 and notice to counsel for R-1 and R-2 was ordered. Application was posted on 24.4.01. For filing counter, the case was adjourned to 26.4.01. Since there was no representation for R-1 and R-2, the application for appointment of Receiver for 'D' Schedule Property was allowed by order of the Court dated 26.4.2001.

7.I.A.No.540 of 2001 in I.A.No.283 of 2001 filed on 10.8.2001:-

This application was filed under Or.9 R.7 CPC to set aside the exparte order dated 26.4.2001, passed against the Petitioner/D-2 in appointing the Advocate Commissioner for 'D' Schedule property. According to the Revision Petitioner, on 26.4.2001, his father-in-law fell ill and that he has to take his father-in-law to hospital for treatment and that he was unable to appear in the Court on that day and also instruct his counsel to appear and file the counter Statement. Expressing hardship, the second Defendant/Revision Petitioner sought to set aside the exparte order passed in I.A. No.283 of 2001.

8.The Application was resisted by the first Defendant on the grounds that the application has been belatedly filed and that the Petitioner ought to have filed an application for condoning the delay and that the petition is not maintainable. It has been further said that the Advocate Receiver appointed, has already taken possession of the 'D' schedule property and leased the same, against which the Petitioner could have no objection. The Petitioner/D-2 had removed pipes and motor and acted against the interest of other co-owners and committed acts of waste.

9.Upon consideration of the contentions of both parties, the learned Subordinate Judge dismissed the application inter-alia on the following grounds :-

(i) the Petitioner has not made out sufficient cause for his non-appearance on 26.4.2004 and that no evidence is produced showing that his father-in-law was ill on 26.4.2004;

(ii)