IMPORTANT POINT
The court established that a lack of diligence in responding to legal proceedings can impact the ability to set aside ex parte decrees, but exceptional circumstances may justify condoning delays.

ORDER :

(V. Lakshminarayanan, J.) :

(Prayer in C.R.P.No.2527 of 2023 : Civil Revision Petition under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 01.12.2022 passed in I.A.No.2 of 2022 in O.S.No.3620 of 2019 on the file of the VI Additional District Judge at Chennai.

Prayer in C.M.A.No.2088 of 2024 : Civil Miscellaneous Appeal under Order XLIII Rule of CPC to set aside the fair and decreetal order dated 01.12.2022 passed in I.A.No.3 of 2022 in O.S.No.3620 of 2019 on the file of the VI Additional District Judge at Chennai.)

These Civil Revision Petition and Civil Miscellaneous Appeal arise against the order passed by the learned VI Additional District Judge at Chennai in I.A.No.2 of 2022 and I.A.No.3 of 2022 respectively in O.S.No.3620 of 2019.

For the sake of convenience, the parties will be referred to as per their ranking in the suit.

2. O.S.No.3620 of 2019 was originally presented before this Court as C.S.No.293 of 2015. This is a suit for recovery of a sum of Rs.88 lakhs together with interest at the rate of 18% per annum and for injunction restraining the defendants from in any manner alienating or encumbering with the suit property and for costs.

3. The case of the plaintiff is that on 01.09.2007, the plaintiff entered into an agreement with the defendants for purchase of the suit schedule mentioned property. In terms of the joint development agreement, it was agreed that the plaintiff will exploit the suit property and develop a multistoried residential superstructure. The total consideration for agreeing to the joint development agreement was Rs.2,20,00,000/-. Pursuant to the agreement, the plaintiff had paid a sum of Rs.88,00,000/- to the defendants. According to the plaintiff, at the time of entering into the agreement, the suits pending between the defendants and the Tamil Nadu Housing Board were never disclosed. It was later that he came to know that A.S.No.379 of 2006 and A.S.No.380 of 2006 were pending before the City Civil Court, Chennai. The proceedings finally culminated in a Second Appeal before this Court in S.A.No.396 of 2011, which was dismissed by this Court in and by way of a judgment dated 05.11.2014. By virtue of the judgment in Second Appeal, the lack of right in the defendants to alienate the property became crystallized. Since the defendants are not in position to alienate the property, the plaintiff was left with no other remedy than to file a suit for recovery of money.

4. Summons were sent to the defendants by this Court and they were also served. However, the defendants neither entered appearance nor filed written statement within time.

5. By enhancement of the pecuniary jurisdiction of the City Civil Court, Chennai, C.S.No.293 of 2015 stood transferred to the VI Additional Judge, City Civil Court. No steps have been taken by the defendants to put forth their defence against the claim of the plaintiff. Consequently the Court, left with no other option, decreed the suit by rendering a detailed judgment on 05.12.2020.

6. On the strength of this decree, the plaintiff also proceeded with an execution petition in E.P.No.339 of 2021 on the file of the City Civil Court, Chennai. In the execution petition, notice was ordered to the defendants / judgment debtors. They received the notice on 23.12.2021, but did not take any steps for setting aside the exparte decree immediately. It was with considerable delay of nearly 467 days that an application to condone the delay came to be filed on 17.03.2022.

7. The plea of the defendants is that, they came to know of the proceedings only when the notice in the execution petition was served and not before that. They would plead that since they were never aware of the pendency of the suit, the delay may be excused and the exparte decree may be set aside.

8. The learned Judge ordered notice in the application and received a counter from the respondent / plaintiff.

9. The respondent filed a counter specifically pleading that noti