O R D E R

This Petition has been filed as against the fair and decretal order dated 12.08.2015 in I.A.No.437 of 2010 in O.S.No.344 of 2010 on the file of the I Additional Sub Court, Salem, thereby dismissing the petition to condone the delay of 894 days in filing the petition to set aside the exparte decree.

2.Originally the suit was filed in O.S.No.632 of 1997 before the

1st Additional Sub Court, Salem. Later it was transferred to the file of Fast Track Court No.II, Salem and re-numbered as O.S.No.65 of 2003. In the suit, the husband and father of the 1st petitioner herein is the 3rd defendant. He engaged a counsel namely one Mr.K.Dakshinamoorthy, who appeared on behalf of the 3rd defendant as well as for 4th and 5th defendant in the suit. Thereafter the 3rd defendant was not aware of the fact that the suit was transferred to the file of the Fast Tract Court No.II, Salem. Only on receipt of notice in the final decree application in I.A.No.812 of 2006, he came to know that the suit was decreed against him. Immediately he filed a petition to set aside the exparte decree dated 14.10.2003, with the petition to condone the delay of 894 days. The said petition was dismissed by an order dated 12.08.2015 in I.A.No.437 of 2010 in O.S.No.344 of 2010. Aggrieved by the same, the present Civil Revision Petition is preferred.

3.The learned counsel for the petitioners submitted his case on two folds. First of all, the Judgment passed by the trial Court itself is not a Judgment in the eye of law. (ii) the petitioner's husband was suffered from cardiac problem since 2002 and he was taking treatment in the hospital. Though the 1st petitioner was examined as P.W.2 and marked Exs.P.14 to P.22, in respect of the treatment taken by her husband, the Court below failed to consider the same and dismissed the petition. He further submitted that in fact husband of the 1st petitioner was examined in chief as P.W.1, but unfortunately when the matter was posted for cross examination, he died due to his heart ailments. When this Court as well as the Hon'ble Supreme Court of India repeatedly held that the Court should adopt liberal approach while considering the condone delay petition, the Court below without considering the above aspects, mechanically dismissed the petition to condone the delay of 894 days.

4.He further submitted that the suit filed by the respondents for partition, declaration and injunction, directing the division of suit A schedule property into two equal shares and allot one such share to the petitioners herein and allot one such share to the respondents separately for their reliefs and to declare that the suit property, ie., 1st item of the B schedule was sold out vide the sale deed dated 19.11.1992, executed by the 1st and 2nd defendant in favour of the 3rd defendant, as null and void and for some other reliefs.

5.In so far as the other prayers are concerned the 3rd defendant do not have any grievance over the prayer. Further it is submitted that likewise the 4th and 5th defendants also purchased the 2nd item of the B schedule property from the very same defendants 1 and 2 herein.

6.When, it is being so, the trial Court dismissed the suit as against the 4th and 5th defendants and decreed the suit in so far as the 3rd defendant in respect of the 1st item of the B schedule property. Further he submitted that on perusal of the Judgment passed in O.S.No.65 of 2003 dated 14.10.2003, is not a Judgment in the eye of law, for the reason that it is not in terms of Section 2 (9) of Civil Procedure Code. In support of his contention he relied upon the following Judgments:-

(i) in the case of N.Balakrishnan Vs. M.Krishnamurthy reported in (1998) 7 SCC 123.

(ii) in the case of M.K.Prasad Vs. P.Arumugam reported in (2001) 6 SCC 176.

(iii) in the case of Meenakshisundaram Textiles Vs. Valliammal Textiles Ltd., reported in 2011 (3) CTC 168.

(iv) in the case of Ummer Vs. Pottengal Subida and Others reported in (2018) 15 SCC 127.

(v) in the case of A.J.Chandras