The court ruled that an ex parte decree is invalid if proper summons are not served, emphasizing the necessity of adjudication on merits.

ORDER :

N.Sathish Kumar, J.

Prayer: Civil Revision Petition filed under Section 115 of CPC to set aside the order and Decretal order dated 08.12.2023 in I.A.No.1 of 2022 in O.S.No.588 of 2007 passed by the learned Principal District Judge, Kancheepuram District at Chengalpattu and consequently, order I.A.No.1 of 2022 in O.S.No.588 of 2007

A challenge has been made to the impugned order dated 08.12.2023 passed in I.A.No.1 of 2022 in O.S.No.588 of 2007 by the Principal District Judge, Kancheepuram District at Chengalpattu, by which the application filed to condone the delay of 1544 days was dismissed.

Brief background of the case in nutshell

2. The revision petitioner's father, namely, Major Harbhajan Singh Sandhu, who is the defendant in the suit in O.S.No.588 of 2007, had entered into an agreement with one Kathiravan on 14.11.2004 in respect of subject properties for a total sale consideration of Rs.54,00,000/- and received a sum of Rs.15,00,000/-. It was agreed between the parties that the sale process would be completed within three months. Thereafter, it appears that the purchaser Kathiravan had assigned the agreement in favour of the plaintiffs / respondents herein on 09.11.2007 and in this regard, a notice was issued by the plaintiffs on 28.11.2007. Subsequently, a suit in O.S.No.588 of 2007 came to be instituted by the assignees for enforcement of the contract and the said suit was decreed ex parte on 17.04.2008.

3. It is the case of the revision petitioner that from the date of agreement till the suit is filed, there was a total silence on the part of the respondents. As the father of the revision petitioner was diagnosed with multiple myeloma cancer, he migrated to Muscat, where the revision petitioner is employed. After filing the suit, strangely without serving summons and in the garb of a substituted service in a regional newspaper, the suit came to be decreed ex parte and in the meanwhile, the revision petitioner's father passed away on 29.12.2009. It is further case of the revision petitioner that prior to that, on 18.06.2008, a release deed had been executed in favour of the revision petitioner by all other sharers and after the demise of his father, he returned from Muscat to India and visited the property in the year 2012 and only at that point of time, he came to know that a sale deed was executed in favour of the plaintiffs by the Court in E.P.No.28 of 2008. Thereafter, the revision petitioner filed an application to set aside the ex parte decree coupled with an application to condone the delay in I.A.Nos.842 to 844 of 2012 through Power Agent to condone the delay, set aside the ex parte decree and to substitute the name of the revision petitioner in the place of the Power Agent.

4. It is also the case of the revision petitioner that thereafter, the respondents took out applications in I.A.Nos.1017 and 1019 of 2017, seeking to reject I.A.Nos.530 of 2014 (filed to implead the revision petitioner as 2nd defendant in the suit) and also 844 of 2012 and those applications had been dismissed on merits. Challenging the same, Civil Revision Petition Nos.4742 and 4743 of 2017 were filed and this Court, while dismissing C.R.P.No.4742 of 2017 filed against I.A.No.530 of 2024, allowed C.R.P.No.4743 of 2017 on 01.11.2019, granting liberty to the revision petitioner to file afresh application to set aside the ex parte decree along with application to condone the delay in filing the petition to set aside the ex parte decree. Thereafter, an application to condone the delay of 1544 days was filed, stating that summons have not been served on his father.

5. The case put forth by the plaintiffs/respondents herein is that the actual delay is 3997 days and not 1544 days as averred by the revision petitioner and the delay for filing application had not properly explained. Though several grounds have been raised by the respondents, the core contention is that decree had already been executed and at this stage, delay cannot be condoned.

6. L