Sufficient cause for condonation of delay not shown.

1. The above revision petition has been filed against the order dismissing an application filed under Section 5 of the Limitation Act, praying the Court to condone the delay of 371 days in filing the petition to set aside the ex parte decree.

2. The respondent as plaintiff filed a suit in O.S.No.926 of 1994 on the file of the Sub Court, Salem against the petitioners herein (as defendants 4 and 5) and three others (as defendants 1 to 3), praying the Court to grant a decree for specific performance of the sale agreement dated 15.10.1993 by receiving the balance balance of sale price of Rs. 12,000 and executing a sale deed in his favour in respect of the suit property and in default, the Court to execute the sale deed in his favour and for other reliefs. The suit O.S.No.926 of 1994 which was originally filed before the Sub Court, Salem was subsequently transferred to the Sub Court, Attur in the year 1997 (after constitution of Sub Court at Attur) and the suit was renumbered as O.S.No.366 of 1997.

3. Briefly it is the case of the respondent herein that he entered into an agreement with defendants 1 to 3 on 15.10.1993 in and by which they agreed to sell the suit properties for a consideration of Rs.60,000 and on the very same day, he paid a sum of Rs.48,000 as part of the sale price. It was further agreed that the respondent herein would pay the balance sale price of Rs.12,000 at any time before 30.10.1994 and on such payment the defendants 1 to 3 would execute a registered sale deed. The said agreement was registered as document No.938 of 1993 on the file of Sub Registrar, Thalaivasal.

The further case of the respondent is that he was ready and willing to perform his part of the contract, but however, defendants 1 to 3 evaded to perform their part of the contract viz., to receive Rs. 12,000 and to execute the sale deed in his favour. This, according to the plaintiff, prompted him to send a notice to defendants 1 to 3 through his lawyer on 4.7.1994. Those defendants, who received the notice, sent a false reply on 11.7.1994. Again plaintiff sent another registered notice, so also a telegraphic notice on 22.10.1994 calling upon them to receive the balance sale price and to execute the sale deed on 31.10.1994 as 29th and 30th were holidays. The defendants 1 to 3 however did not respond to it but on the other hand sent a reply containing false allegations. According to the plaintiff, he came to know that defendants 1 to 3 have sold the suit properties to the petitioners herein/defendants 4 and 5 on 16.11.1994 and hence filed the suit impleading petitioners also as parties.

4. As mentioned supra, the suit was transferred to the file of Sub Court, Attur and renumbered as O.S.No.366 of 1997. On 6.4.1999, as the petitioners did not turn up, an ex parte decree came to be passed. The respondent filed E.P.No.19 of 2000 and in which the notice was sent from the Court to the petitioners herein.

5. On 12.6.2000 petitioners herein filed I.A.No.193 of 2001 in O.S.No.366 of 1997, an application under Section 5 of the Limitation Act praying the Court to condone the delay of 371 days in filing the petition to set aside the ex parte decree. In the affidavit in support of the said petition, they have stated that their counsel at Salem informed them that it would be sufficient for them to come to Court only after receiving letter from him (counsel) and hence they did not attend the Court on all the hearing dates. The petitioners would further claim that on 13.5.2000 they received a notice in E.P.No.19 of 2000 and only thereafter they approached their lawyer at Salem. On enquiry their counsel informed them that he was not able to attend each and every hearing dates before the Sub Court at Attur and on that day when ex parte decree came to be passed, he did not attend Court and that he himself was not aware about the exparte decree. Further claim of the petitioners is that had their counsel at Salem informed about the hearing date viz., 6.4.