ORDER :

R. Subramanian, J.

This matter is taken up for hearing through Video-Conferencing.

1. The defendants 2, 5 and 6 in OS No. 2 of 2008 are the petitioners. The suit was laid by the first respondent/plaintiff, seeking partition and separate possession of his 1/5th share in the suit properties.

2. Certain alienations and certain gratuitous transfers made by the first defendant were also impugned in the suit. It appears from the records that the suit was decreed ex parte on 17.07.2009, an application for final decree was filed in IA No. 196 of 2012. The petitioners herein filed the instant Application in IA No. 39 of 2013 seeking condonation of delay of 1216 days in seeking to set aside the ex parte decree.

3. The reasons set out for the delay is that the parties are governed by the Customary Hindu Law, as in vogue in Pondicherry and therefore, a suit for partition itself is not maintainable. It was also contended that the second defendant, who is the deponent and father of the minor defendants 2 and 3, though, had engaged a counsel, the said counsel did not inform him of the proceedings in the suit. Only after receipt of the notice in the final decree proceedings he came to know about the ex parte decree that was passed in the suit on 17.07.2009. Therefore, according to him, there was no negligence on his part in prosecuting the proceedings and it is the communication gap between him and his counsel that has resulted in these delay.

4. This application was resisted by the plaintiff contending that there is no explanation, as to why, the deponent did not meet his counsel to file a written statement or to give him further instructions. In the absence of any explanation for not meeting the counsel between 16.04.2008 to 17.07.2009, it cannot be said that the delay has been properly or sufficiently explained. It is also stated that the petitioners had engaged one Mr. Ganapathi as their counsel in the final decree proceedings and they have been taking time for filing counter. The petition should have been filed at least within 30 days from the date of receipt of the notice in the final decree proceedings. The petition which is actually filed on 15.12.2012 is hopelessly barred by limitation and there is no sufficient reason assigned for condonation of delay.

5. The Trial Court upon a consideration of the reasons assigned in the affidavit filed in support of the application held that though the petitioners were served in the final decree proceedings on 12.04.2012 they have chosen to file an application to set aside the ex parte preliminary decree only on 15.12.2012. Therefore, the reasons assigned cannot be treated as sufficient cause under Section 5 of the Limitation Act. The learned Trial Judge also pointed out that the petitioners having entered appearance in the suit on 11.03.2008, have not filed a written statement till 17.07.2009. Therefore, the learned Trial Judge concluded that the petitioners have not explained the delay properly and dismissed the application. Though the learned Trial Judge had decided the Section 5 Application, in the opening paragraph of the order, it is stated that the application has been filed under Order 9 Rule 13 meaning thereby an application to set aside an ex parte decree.

6. In view of such statement having been made in the order of the Trial Court, the petitioners herein had filed a Civil Miscellaneous Appeal in CMA No. 23 of 2016 on the file of the Principal District Judge, Villupuram, under Order 43 Rule 1(d) of the Code of Civil Procedure. It is not seen from the judgment of the learned Principal District Judge made in CMA No. 23 of 2016 that any objection was raised regarding the maintainability of the appeal. The learned Principal District Judge went on to decide the Appeal on merits. Concurring with the findings of the learned Trial Judge, the learned Principal District Judge dismissed the Appeal, hence the Revision.

7. I have heard Mr. K.S. Vaithianathan, learned counsel appearing for M/s. K. Cha