There is no specific time limitation for setting aside an ex-parte order, as established by previous judgments of the High Court and the Supreme Court.

Heard both sides

2. The defendants 8 and 9 in O.S.No.349 of 1995, on the file of the Principal Subordinate Judge, Madurai, are the revision petitioners.

3. Thesuit was filed by the respondent herein for partition of 6/80th share in the A schedule item Nos.1 to 3 and 1/12th share in the B schedule Item No.1 to 10 and for mesne profits from the defendants 15 to 18, who are in illegal occupation of the Item No.1 of the suit “A schedule properties.

4. The case of the plaintiff/respondent herein was that the property originally belonged to M.S.Ayyasamy Pillai, who got the property under a partition deed, dated 212. 1925 and he died on 20.05.1942 leaving behind his widow Sankarammal, his daughter Mrs.Vijayalakshmi and sons, defendants 1,3 and 6 and other defendants. As M.S.Ayyasamy Pillai, died prior to Indian Succession Act 1956, the three sons are entitled to 1/4th share each in the house property viz., the A schedule property and in respect of B schedule property, which are agricultural properties, the sons are entitled to 1/3rd share each. After the death of Sankarammal, the defendants 1,3 and 6 and her daughter Vijayalakshmi and Sulochana inherited the share in the A schedule property. The 8th defendant is the daughter of the 6th defendant, who is son of M.S.Ayyasamy Pillai and the 9th defendant is the wife of the 6th defendant. The suit was contested by the defendants 10,15,22 and 24 and they filed a written statement. The 6th defendant remained ex-parte and the 8th and 9th defendant also remained ex-parte. Therefore, an ex-parte order was passed against them and after the evidence of the plaintiff was closed and during the examination of the defendants witnesses, the 8th and 9th defendants viz., the revision petitioners herein filed two petitions to set aside the ex-parte order passed against them. That application was dismissed by the lower Court on the ground that they were set ex-parte on 22.08.1997 and the application was filed on 22.08.2000 after a lapse of 12-1/2 years and therefore, relying upon the judgment reported in AIR 2007 Kerala 301, in the case of C.L.Cleetus vs. South Indian Bank Ltd., and another, held that the application ought to have been filed within three years, under Article 137 of the Limitation Act and having filed beyond the period, the petition is not maintainable. Aggrieved by the same, these civil revision petitions are filed.

5. Mr.S.Ramesh, the learned counsel appearing for the revision petitioners submitted that to set aside the ex-parte order, there is no period prescribed under Limitation Act and before passing of the judgment and decree in the suit at any time the defendants, who were set ex-parte can file an application to set aside the ex-parte order and the lower Court erred in following the judgment of the Kerala High Court and dismissed the application.

6. He further submitted that as per the judgment reported in 1997(1) MLJ 37 in the case of Pilla Reddy and others vs. Thimmaraya Reddy and others & 1989(2) MLJ 259 in the case of Palani Nathan vs. Devanai Ammal, no period of limitation has been prescribed to set aside the ex-parte order and the application to set aside the ex-parte order filed is in time.

7. Per contra, the learned counsel appearing for the plaintiffs/respondents relied upon the judgment of this court reported in 2005(3) MLJ 379 in the case of Rajaji vs. R.Krishnaji, wherein it has been specifically held that Article 137 of the Limitation Act applies in case where application is filed to set aside the ex-parte order and as per the said article, within three years the order is to be set aside and hence, the petition has been rightly dismissed by the lower Court and that need not be interfered with.

8. I have given my anxious consideration to the submissions made by both parties.

9. No doubt, in the judgment reported in 2005(3) MLJ 379, in the case of Rajaji vs. R.Krishnaji, the learned Judge distinguished the difference between the ex-parte decree and the