JUDGMENT

This Civil Miscellaneous Appeal has been filed against the order, dated

31.01.2022, passed in E.P.No.24 of 2019 in O.S.No.14 of 2012, on the file of the Principal District Court, Kanyakumari at Nagercoil. The appellant herein is the defendants and the respondent herein is the plaintiff in the suit. The original suit was filed for recovery of Rs.43,79,500/-, later, the plaint was amended for a prayer of specific performance. An exparte decree was passed on 01.03.2019 and the plaintiff filed a petition for execution in E.P.No.24 of 2019. Against the order the defendants filed this Appeal.

2. Brief substance of the grounds of appeal, in CMA(MD)No.253 of 2022, is as follows :-

2.1. The appellants are the owners of the plaint schedule property. The appellants offered to sell the plaint schedule property to the respondent for a sum of Rs.15,00,000/- per cent. The respondent has created a sale agreement and got the signature of the appellant and (Latha @ Pushpalatha) first appellant and her son Arun (second appellant) for a sum of Rs.5,00,000/- per cent. The 3rd appellant was a minor at the time of agreement. The respondent pressurized for the execution of the sale deed. The third appellant sent a notice on 05.01.2012 expressing his unwillingness to execute the sale deed. The respondent filed a suit for recovery of money. Thereafter, he has amended the plaint for an additional relief for specific performance.

2.2. The second and third appellants have filed their written statements in the plaint. The third appellant was minor at the time of sale agreement. The respondent never called upon the appellants to the Registrar Office at any point of time. The respondent was not ready and willing to perform his part of the Contract and he never filed any complaint before the Superintendent of Police. The first appellant never informed the police that the sale deed will be executed after the appellant attained majority. Though there was a contract for the sale, the plaintiff has filed a suit for recovery of money, which is not maintainable.

2.3. The respondent subsequently filed a petition to amend the plaint to add an additional relief, praying for a specific performance of the contract. The said petition was rejected on 06.04.2016, then, the respondent filed a C.R.P.(MD)No. 2037 of 2016, before this Court. That petition was allowed. Since the appellants failed to file a counter, the petition was numbered as I.A.No.2 of 2017 and the appellants were set exparte. The plaint was amended. Without considering the written statement filed by the appellants 2 and 3 before the trial Court, the suit was set exparte and an exparte decree was passed on 01.03.2019.

3. On the side of the appellants, it is stated that the appellants filed a petition in I.A.No.2 of 2019, to condone the delay of 240 days in filing a petition to set aside the exparte decree. The trial court dismissed the petition. The appellants approached this Court and filed a Civil Revision Petition in CRP(MD)No.SR11379 of 2022 and the same is pending. On the basis of the exparte decree, the respondent filed a petition in E.P.No.24 of 2019, to execute the sale deed and to receive the balance consideration of Rs.13,30,000/-. The appellants filed a counter affidavit. Without considering the same, again, the trial Court set the appellants as exparte in the E.P. Proceedings. The execution petition was allowed on 31.01.2022 and is posted for execution of sale deed on 03.03.2022.

4. On the side of the appellants, it is further stated that the trial Court failed to consider that the first appellant filed a petition to condone the delay along with a petition to set aside the exparte decree. The prayer for a relief of specific performance was hit by Section 54 of the Limitation Act. Without considering the same, the trial Court allowed the amendment petition and decreed the suit as exparte. Without considering the grievance of the first appellant, the trial Court dismissed the delay excuse petitio