1. The appellant/revision petitioner is the 3rd defendant in the suit. The respondents 1 and 2 filed a suit for the relief of declaration of title to the suit property on the basis of a Will and also a declaration that the judgment and decree passed in O.S.No.83/85 in favour of the appellants as null and void and also for a declaration that the sale deed executed by the 3rd respondent in favour of the 4th respondent under a power of attorney is also not valid.

The suit property, 1 acre and 86 cents, is a part of an extent of 26 acres in resurvey No.1178. The identification of the suit property is not in dispute. The entire 26 acres originally belonged to one Deva Aasirvatham, who is the grandfather of respondents 1 and 2 and father of the third respondent. The 3rd respondent is the mother of the respondents 1 and 2.

2. The appellant had entered into a sale agreement dated 9. 1981 with the said Deva Aasirvatham in respect of 26 acres in resurvey No:1178. Under the sale agreement, the appellant was permitted to develop the entire area to form lay out of house sites and the vendor agreed to execute the sale deeds in favour of the various intending purchasers identified by the agreement holder. However, the recitals in the sale agreement would show that the vendor agreed to sell 1 acre for a sum of Rs.2,400/- and has received a sum of Rs.6,000/-as advance. The appellant developed the property into house sites and an area of 3 acres 8.25 cents was set apart for future development. 176 plots of house sites had been sold by the vendor and the agreement holder to the various purchasers on various prices and they seem to have shared the sale prices in the ratio of 65:35. The appellant filed a suit in O.S.No.83/85 for a specific performance of contract in respect of remaining 3 acres 8.25 cents against the said Deva Aasirvatham before the District Munsif, Tirunelveli. Deva Aasirvatham entered appearance and resisted the suit. However, after filing of the written statement, he did not appear and an ex-parte decree was passed on 20.7.1989. Deva Aasirvatham died on 27. 1996. An execution petition was filed in the year 1998.

3. The respondents 1 and 2 have filed the present suit in O.S.No.77 of 2004 on the file of Principal District Munsif, Tirunelveli stating that Deva Aasirvatham had bequeathed property in their favour by a Will dated 96. According to the respondents 1 and 2 (here in after reffered as respondents) the Will was probated on 13. 2003. Meanwhile, the appellants have impleaded the legal heirs of Deva Aasirvatham in the execution proceedings of O.S.No.83/85 and the respondents 1 and 2 are also parties. The respondents have filed an application under Sec.47 of Civil Procedure Code to declare that the decree is inexecutable and also for a declaration that the property under execution belongs to them under the Will. In the present suit, the following reliefs were sought for:

1. To declare the respondents 1 and 2 as absolute owners of the property which is 1 acre and 86 cents out of 26 acres in Re-Survey No.1178 on the basis of the Will;

2. To declare the decree and judgment passed in O.S.No.83/85 is null and void and

3. To declare a sale executed by the 2nd respondent in favour of the 3rd respondent dated 28. 2003 as invalid.

4. Thelearned District Munsif, Tirunelveli framed triable issues in the suit and found that the respondents have not proved the execution of the Will and therefore, they are not entitled to the property. It is also found that the sale deed executed by the 3rd respondent in favour of the 4th respondent on the basis of power of attorney is not valid as the principal herself died a year before the date of sale deed.

5. As far as the legality and executability of the decree in O.S.No.83 of 1985 is concerned, the trial Court found that though it is an exparte decree, it was passed by a competent court, having jurisdiction and the respondents cannot question the decree beyond the period of limit