The delay was condoned based on non-service of notice and death of the defendants. The Court exercised its discretion and allowed the application by imposing cost. The delay was condoned as the first respondent had shown sufficient cause and the Court found no perversity or illegality in the decision.

1. The plaintiff in O.S.No. 15364 of 1996 on the file of the 7th Assistant Judge, City Civil Court at Chennai is the petitioner. He is aggrieved against the order made in I.A.No. 3951 of 2009 dated 9.9.2009 in allowing the application filed under Section 5 of the Limitation Act seeking to condone the delay of 1021 days in filing an application to set aside the exparte decree dated 17.4.2006.

2. The short facts that are necessary for considering this revision are as follows: The plaintiff/petitioner originally filed C.S.No. 347 of 1983 on the file of this Court against one Mrs.Rama Patnaik alias V.R.Patnaik seeking for the relief of specific performance of an agreement of sale dated 7.7.1980 and for other reliefs. During the pendency of the suit, the sole defendant died and her legal heirs were brought on record as defendants 2 to 6. The said suit was subsequently transferred and taken on file as O.S.No. 15364 of 1996 on the file of the 7th Assistant Judge, City Civil Court, Chennai in pursuant to the enhancement of pecuniary jurisdiction. The above suit came to be dismissed for default on 16.10.1997. An application in I.A.No. 20187 of 1997 was filed by the plaintiff to restore the said suit. The said restoration application also came to be dismissed for default on 8.10.2002. Thereafter, I.A.Nos. 919 and 920 of 2004 were filed for restoring I.A.No. 20187 of 1997 and for condoning the delay in filing such restoration application. On 22.8.2005, both the applications were allowed and fresh notice was ordered in I.A.No.20187 of 1997. The suit was subsequently restored on 25.1.2006. Thereafter, on 17.4.2006, an exparte decree came to be passed in the said suit. Consequent upon such exparte decree, the plaintiff filed E.P.No. 2965 of 2006 to execute the said decree. The 5th defendant filed I.A.No. 3951 of 2009 on 23.2.2009 under Section 5 of the Limitation Act, seeking to condone the delay of 1021 days in filing a petition to set aside the exparte decree. The said application was allowed by the Court below on 9.9.2009 on condition to pay a sum of Rs. 5, 000/- as costs . When the cost was refused to be received by the plaintiff, an application was filed before the Court seeking permission to deposit the same and the Court below ordered the said application and the cost was thus deposited into the Court. Challenging the said order dated 9.9.2009, the present Civil Revision Petition is filed by the plaintiff.

3. The contentions of the 5th defendant before the Court below are as follows:-The plaintiff filed the said suit against his mother Mrs. Rama Patnaik alias V.R.Patnaik seeking for the relief of specific performance. She died on 5.1.1984 leaving behind the defendants 2 to 6 as her legal heirs. After her death, each defendant inherited 1/5th undivided share in the suit property. The suit was dismissed for default on 16.10.1997 and consequently his counsel had returned the bundle to him. He was residing at Kottayam, Kerala since 1996 and he did not receive any notice from the Court in any of the proceedings initiated subsequent to the dismissal of the suit for default. Thereafter, he shifted his residence to Hyderabad during March 2005 and he is residing there all along. The 6th defendant died on 17.2.1997 at Kottayam, Kerala. The second defendant died on 17.8.1999 at Hyderabad. The third defendant died on 27.9.2001 at Goa. All the defendants thus had shifted their residence outside the State and out of whom the defendants 2 to 4 and 6 died already and the 5th defendant had no knowledge or notice about the filing of the restoration application and all other subsequent applications in the suit. Further, in pursuant to the dismissal of the suit, the legal heirs of the defendants 2 to 4 and 6 and the 5th defendant had conveyed the suit property to third parties for valuable sale consideration by sale deed dated 23.6.2005 and registered as Document No. 680 of 2005. Only on 11.12.2008, the 5th defendant received a letter dated 7