Failure to demonstrate sufficient cause for delay in setting aside an ex parte decree results in dismissal of the application, emphasizing diligence and valid service of summons.

ORDER :

N. SATHISH KUMAR, J.

1. Challenging the order dated 11.07.2024 passed by the learned Subordinate Judge, Kangeyam, Tiruppur District, refusing to condone the delay of 1566 days in filing the application seeking to set aside the ex parte decree dated 16.06.2015 and thereby dismissing the application in I.A.No.33 of 2020 in O.S.No.151 of 2014, the 2nd defendant in the suit has come up with the present revision petition.

2. The 1st respondent is the plaintiff, and the 2nd respondent is the 1st defendant in the suit in O.S. No. 151 of 2014.

3. The suit was filed for specific performance of the contract dated 14.05.2012 entered into between the plaintiff and the defendants, whereunder the defendants agreed to sell the suit schedule mentioned properties for a total consideration of Rs.2,20,000/- . The plaintiff pleaded in the plaint that he had paid a sum of Rs.2,00,000/- towards an advance to the defendants on the date of the agreement itself, and the balance of Rs.20,000/- was agreed to be paid within a period of two years from the date of the agreement. The plaintiff further pleaded that he was always ready and willing to pay the balance and to get the sale deed executed in his favour, but it was the defendants who delayed the sale and were giving evasive replies. Hence, the plaintiff issued a legal notice to the defendants and thereafter, filed the suit for specific performance of the contract.

4. According to the plaintiff, despite service of summons, the defendants did not appear, and therefore, they were set ex parte, and the suit was decreed ex parte by judgement dated 16.06.2015. Thereafter, an execution petition was filed in E.P.No.10 of 2018 to have the sale deed executed through court. Despite service in the said execution petition, the judgement debtors/the revision petitioner and the 2nd respondent herein did not appear, and they were set ex parte and the execution petition was allowed. Accordingly, the decree holder/1st respondent-plaintiff has had the sale deed executed in his favour through court. Thereafter, decree holder/1st respondent-plaintiff filed another petition in E.P.No.109 of of 2019 for delivery of possession of the suit- scheduled mentioned property, wherein, upon notice, the judgement debtors entered appearance through counsel on 20.12.2019. Thereafter, the application under Section 5 of the LIMITATION ACT came to be filed seeking to condone the delay of 1566 days in filing the application to set aside the ex parte decree dated16.06.2015.

5. The revision petitioner pleads that he never entered into any unregistered sale agreement with the plaintiff and the agreement of sale pleaded in the plaint is a fabricated one. He was not served with a summons in the suit. He was not present in the village at the relevant point of time, as he relocated at Chidambaram on account of his employment. He was set ex parte on 10.03.2015 and thereafter, on 16.06.2015, an ex parte decree was passed against him. He was not aware of the ex parte decree passed on 16.06.2015. Only in June, 2019 when he visited the village he came to know about the ex parte decree. No summons was taken to his relocated residence at Chidambaram. Hence, there had occurred a delay of 1566 of days in filing the application seeking to set aside the ex parte decree.

6. On notice in the said delay condonation application, the 1st respondent/plaintiff filed a detailed counter opposing the application. According to the 1st respondent, the revision petitioner is the son of the 2nd respondent and the 2nd respondent was se