A petitioner must provide a satisfactory explanation for delay under Section 5 of the Limitation Act to warrant condonation of such delay.

O R D E R

This civil revision petition has been filed seeking to set aside the fair and decreetal order, dated 07/07/2022 passed in IA No.345 of 2020 in OS No.537 of

2007 by the Principal District Munsif, Thirumangalam.

2.The facts in brief:-

A suit in OS No.537 of 2007 was filed by the respondent herein seeking the relief of specific performance and for costs. The defendants entered appearance and filed their written statement. The defendants 3 and 4 remained ex-parte, on 30/08/2016. So an ex-parte order was passed on that date. To set aside the ex-parte decree and judgment, they filed IA No.345 of 2020 stating that on the date of hearing, they were affected by physical illness. So, they could not contact his Advocate and instructed him to get adjournment. Later, they went outside on their job. After returning their village, they enquired with their Advocate. At that time, he was stated that because of the non-appearance, ex-parte decree was passed, on 30/08/2016.

3.That was resisted by the respondent stating that there was huge delay of 1284 days; Proper reason has not also assigned; He filed the execution petition in EP No.9 of 2017; Even in the execution proceedings, they remained ex-parte. Draft sale deed was filed. The sale deed was also executed, on 04/03/2019; Later, EA No.49 of 2019 was filed for delivery. Now pending delivery process, the petition is filed with huge delay.

4.After hearing both parties, the trial court dismissed the petition stating that no proper reason was assigned and the reasoning mentioned by the petitioners is also not acceptable.

5.Challenging the above said dismissal order, this civil revision petition is preferred. Even that was not properly prosecuted. Originally, the civil revision petition was returned due to some defects in CRP(MD)SR.No.81346 of 2022 on the ground that there was a delay of 211 days in making representation. That was allowed by this court, on 22/01/2024 on payment of costs. So this shows that the petitioners not only prosecuted the original suit before the trial court, but even before this court, they exhibited the lethargic attitude.

6.Now coming to the facts, it has been simply stated that on the date of hearing, they affected by physical illness. What sort of illness, they suffered, no particulars are mentioned. Later, they say that after recovery from the illness, they went out of place to attend their job. On which day, they went out of station is not mentioned. It is further stated that after returning from the out-station, they made enquiry with the Advocate, who is appearing for them. At that time, only, they were told that ex-parte decree was passed. Again, on which date, they contacted their Advocate is not clear. From which date, the delay is calculated is also not mentioned in the affidavit.

7.Perusal of the order of the trial court shows that this is the second attempt, they remained ex-parte. Previously, they remained ex-parte on 17/03/2008 due to non filing of the written statement. That application was allowed and written statement was filed and when the second default committed at the time of trial, they ought to have vigilant in prosecuting the matter. That was also not exhibited by them. Under this circumstance, whether the order passed by the trial court suffers from any illegality or irregularity is the point to be decided by this court.

8.The learned counsel appearing for the respondent would rely upon various judgments passed by various courts as to how such application must be dealt. Apart from that, it is also submitted that against the ex-parte decree and judgment, only appeal will lie. For that purpose, he would rely upon the judgment of the Hon'ble Supreme court in Koushik Mutually Aided Cooperative Housing Society Vs. Ameena Begum and another (2023 SCC OnLine SC 1662).

9.No doubt that against the ex-parte decree, appeal will lie, as per Order XLIII Rule 1 CPC. But here, revision is preferred against the order of dismissal passed in the petition filed und