The plaintiff is the civil revision petitioner before this Court, challenging the order in I.A.No.278 of 2009 in O.S.No.72 of 2006 dated 26.08.2011, on the file of the learned Subordinate Judge, Mettur, by allowing the condone delay petition.

2. The case of the petitioners/proposed parties, who have filed the petition under Order 9 Rule 13 of CPC along with the petition to condone the delay of 926 days in filing the petition, to set aside the exparte decree passed against the second defendant in the suit on 22.12.2006.

3. The petitioners/proposed parties further state that the first respondent/plaintiff has filed the suit for specific performance against the defendants 2 and 3 on the basis of fraudulent sale agreement and have obtained an exparte decree on 22.12.2006. One Amudhavalli, who is the third respondent herein is the mother of the proposed parties and she died on 03.08.2008 leaving the proposed parties namely, Inbanila, Ezhil Mani and Amudhavalli and the fourth respondent one Thenthamil, who is also proposed party and one among the legal heirs of the deceased Rajeswari and they were succeed to her estate.

4. The further case of the proposed parties is that the suit properties originally belongs to one Sadasiva Chettiar, who executed a Will with regard to all the properties in favour of his wife Alamelu Ammal, which is the subject matter of the suit. As per the said registered Will dated 27.01.1937 Alamelu Ammal became the absolute owner of the properties after the death of Sadasiva Chettiar. The proposed parties also states that Alamelu Ammal and Sadasiva Chettiar have no issues and after Sadasiva Chettiar's death, Alamelu ammal took shelter under her sister Kuppammal and her daughter one Rajamanickammal. The said Rajamanickammal died leaving 4 issues of which are Rajeswari the deceased third respondent and one Shakthivel. The said Alamelu Ammal during her life time executed a registered Will dated 12.04.1993 wherein she appointed the deceased third respondent and one Shiva Chidambaram as executors of her properties, to maintain her properties, to receive rents, to give the amounts to Rajamanickammal and Shakthivel. But, the said Rajamanickammal had no right to alienate the property. But, after her death the properties should devolve on her son Shakthivel and daughter Rejeswari and the Shakthivel is no more. Therefore, the third respondent Rajeswari has no individual or absolute right over the suit properties.

5. It is the case of the proposed parties that the deceased Rajeswari had given power to the second respondent one O.E.Shivasankar the defendant in the suit, he entered into a sale agreement with 1st respondent i.e. O.E.Siva Mahendran, the plaintiff herein, who is none other than his own brother and they have collusively filed a suit before the Court and have obtained a collusive exparte decree. On the basis of the said decree, the plaintiff has filed the Execution Petition in REP.No.18 of 2007 for execution of sale deed. In the said execution petition also they collusively obtained an exparte order. Thereafter, the plaintiff and the defendant have collusively filed an E.P.No.65 of 2007 for delivery of possession and occupants of the said properties filed a claim petition in the execution petition in REP.No.18 of 2007 and after the death of Rajeswari they have taken steps to implead the petitioners as respondents to the said claim petition in REP.No.18 of 2007 and after the death of Rajeswari they have taken steps to implead the petitioners as respondents to the said claim petition. Therefore, only now the petitioners came to know about the exparte order.

6. They also contended that the alleged power of attorney is not a valid document as the said Rajeswari has no absolute right to alienate the property. Since the legal heirs of Shakthivel are alive and they also have rights in the suit properties. Even during the life time of Rajeswari as she tried to alienate the property effected paper publication on 24.02.