The court has the discretion to condone delay in seeking to set aside an ex parte preliminary decree, especially in cases where the defendant has passed away before the decree was passed.

1. This Civil Revision Petition arises out of a refusal by the Court below to condone the delay of 498 days in seeking to set aside the ex parte preliminary for partition.

2. Heard Mr. N.R. Rajagopalan, learned counsel appearing for the petitioners and Mr. K.A. Ravindran, learned counsel appearing for the Respondent.

3. The respondent filed a Suit in O.S. No.86 of 2002 on the file of the Additional District Munsif, Cuddalore seeking partition and separate possession of his 1/3 share in the suit property. The Suit was filed against one Viswanathan and Nagappan, who were brothers.

4. It appears that the second defendant Nagappan died on 12. 2005 and without impleading his legal heirs, an ex parte preliminary decree came to be passed on 212. 2005. Upon coming to know of the decree, the petitioners who are the legal representatives of the deceased second defendant, filed an Application to set aside the ex parte preliminary decree and also to condone the delay of 498 days. That application in I.A. No.1003 of 2007 was dismissed by the Court below forcing the petitioner to come up with the present Civil Revision Petition.

5. It is started by the learned counsel for the petitioner that at the time when the decree was passed, the second defendant had already died and the legal heirs were not brought on record before passing the preliminary decree. The same is not disputed by the learned counsel for the respondent.

6. In such circumstances, I am of the considered view that the delay should be condoned. It is also seen from a copy of the written statement filed by the petitioner that they have admitted to the entitlement of the respondent/Plaintiff to 1/3 of the suit property. Therefore, virtually, there is an admission on the part of the petitioners and hence Mr. K.A. Ravindran, learned counsel for the respondent contended that the Court is again obliged to pass the same decree.

7. Though the said contention is justified, the ex parte decree deserves to be set aside, for the simple reason that it was passed against Nagappan who was not alive on that date. Therefore, this formality should actually been gone through.

8. In view of the above, the Revision allowed and the order under revision is set aside.

I.A. No.1003 of 2007 in O.S. No.86 of 2002 on the file of the Additional District Munsif, Cuddalore shall stand allowed. The Additional District Munsif is directed to take up the other Application under Order 9, Rule 13 and pass appropriate orders and reopen the Suit and proceed to pass a fresh decree, on the basis of the admission made by the petitioners in the written statement so that the decree passed on the admission is also binding on the petitioners and the petitioners become a party to the same. This exercise shall be carried out by the Court below within a period of two months from the date of receipt of a copy of this order. Consequently, the connected M.P. is closed. No costs.