Due to treatment for vertigo defendant could not appear on the date of hearing.

(1) THE first defendant in O. S. No. 338 of 1982 on the file of the City Civil court, Madras has suffered an order of dismissal on 08. 02. 1996, of her application in i. A. No. 2039 of 1986 to set aside the ex parte decree dated 26. 09. 1984. The appellant preferred an appeal in C. M. A. No. 553 of 1986 before this Court and that was also dismissed on 15. 07. 1994. Aggrieved by the same, the appellant preferred this appeal under Clause 15 of the Letters Patent. During the pendency of the appeal, the appellant died and the legal representatives were brought on record.

(2) THE respondent/plaintiff filed the suit for delivery of vacant possession of the suit property and for profits. The suit property was brought to sale under Section 69 of the Transfer of Property Act and the plaintiff purchased the same in a public auction held on 31. 12. 1979 for a sum of Rs. 52. 700/ -. The plaintiff paid Rs. 13,200/- on 31. 12. 1979 itself and the balance of the sale consideration was paid on 11. 01. 1980. The sale deed was obtained on 13. 05. 1981. The first defendant/appellant questioned the sale and also filed a pauper O. S. 491 of 1981 against the respondent/plaintiff praying for a declaration that the auction sale was not valid and for injunction. The suit was posted for trial on 27-09-1984 and the appellant did not appear to conduct the suit and hence, she was set ex parte and a ex parte decree was passed on 27-09-1984.

(3) THE appellant filed an application to set aside the ex parte decree and in the affidavit filed in support of the petition had stated that she was under treatment for vertigo from 25-09-1984 to 27-09-1984 and the doctors advised her to take rest for another three days and only in the said circumstances, she was not able to be present on 26-09-1984. To support her contention, she had also filed a medical certificate. But, however, the trial Court did not accept her case and dismissed the petition on the ground that the petitioner was not examined and the doctor, who had issued the medical certificate was not examined and that the petitioner had already been once set ex parte and there was "no sufficient cause" to allow the petition. The learned single Judge of this Court accepted the findings of the trial court and dismissed the appellants appeal in c. M. A. No. 553 of 1986. As against the same, this appeal has been filed.

(4) LEARNED advocate for the appellant, before us, has submitted that the appellant could not be present before the trial Court on 26-09-1984 only due to her ill-health and she was aged about 65 years at that time and a medical certificate was also produced before the trial Court to prove her illness, but the same was not accepted by the trial Court, but instead rejected, which resulted in deprivation of the appellants right to defend the suit on merits,, which is prejudicial to her interest also. It is further submitted that the appellant had also taken separate proceedings in O. S. No. 2491 of 1990 to set aside the Court auction sale. As the suit filed by the plaintiff is one for delivery of possession, in pursuance of the purchase of the suit property in Court auction sale, under Section 69 of the Transfer of Property Act, the appellants to prove their bona fides, has offered to deposit the sale amount into court paid by the respondent to the auctioneer.

(5) LEARNED advocate for the respondent would however resist the appeal on the ground that the appellant was not at all diligent in defending the suit. It is also pointed out that the defendant/appellant once remained ex parte on 24-12-1982 and the same was set aside in i. A. No. 4566 of 1983 on costs. The suit came up for hearing on several occasions from 14. 06. 1984 to 26.-

9. 1984 and on all those occasions, the appellant was absent and hence, the court rightly set her ex parte on 26-09-1984 and a decree was passed and the same was also confirmed by the first Appellate Court. It is further urged that the respondent took the propert