O R D E R

This Civil Revision Petition is directed as against the fair and decretal order passed in I.A.No.1943 of 2012 in O.S.No.1045 of 2004 dated 27.07.2015 on the file of the learned Principal District Munsif, Salem, thereby, dismissing the petition to condone the delay in filing the application to set aside the ex-parte decree.

2. The petitioners are the defendants 2, 3 and 5 in the suit filed by the respondent herein for declaration and permanent injunction in respect of the suit property. The petitioners, after engaging their counsel to appear in the suit filed by the respondent, filed a detailed written statement. Thereafter, they came to Chennai for their avocation, to do Mason works and they are illiterate. Thereafter, their counsel failed to appear before the trial Court and as such, they were set ex-parte. Utilizing the set ex-parte decree, the respondent trespassed into the suit property and forcibly took possession. Thereafter, the petitioners also lodged a complaint before the Land Grabbing Cell and came to understand the decree and filed a petition to set aside the ex-parte decree, with a delay of 5 years, 11 months and 23 days.

The said petition was dismissed and aggrieved by the same, the present Civil Revision Petition is filed.

3. The learned counsel for the petitioners submitted that already the entire suit property was decreed in favour of the petitioners vide the partition suit filed in O.S.No.390 of 1980. Initially, the suit was dismissed and aggrieved by the same, they filed an Appeal Suit in A.S.No.67 of 1984 and the same came to be allowed. After the decree, one of the petitioners sold out the suit property in favour of the respondent herein suppressing the decree passed in the said appeal suit. When the petitioners tried to sell out the suit property utilizing the said circumstances, the respondent filed a suit for declaration and injunction not to part with the property, which was already decreed in favour of the petitioners herein. Therefore, the petitioners have got very good case to succeed the suit. Though the petitioners have filed a detailed written statement along with documents, their counsel failed to appear before the trial Court and thereafter, they came to Chennai for their avocation. Therefore, they are unable to pursue the suit and set ex-parte.

4. In fact, in the condone delay petition, the third petitioner was examined as P.W.1 and Exs.P.1 - plaint and P.2 - judgment and decree in A.S.No.67 of 1984 were marked. The Court below without considering the said exhibits marked by the petitioners and by observing that the reasons adduced by the petitioners in the condone delay petition are not sufficient to condone the enormous delay of more than 5 years, dismissed the same. Whereas the petitioners' case is that the decree itself was obtained on fraud, by the respondent. Based on the fabricated sale deed and only to grab the property, the respondent has filed a suit and obtained a decree in their favour. Therefore, the petitioners have got very good case to succeed before the trial Court.

5. Per contra, the learned counsel appearing for the respondent submitted that the description of the property in O.S.No.390 of 1980 and the suit filed by the respondent is completely different one in the total extent of 3 acres and 82 cents comprised in S.No.168/2 ad-measuring 3,375 sq.ft in Door.No.10/92. Whereas the description of the property mentioned in the suit filed by the petitioners was the land ad-measuring 3.82 acres comprised in S.No.168/2, for the house at Door.No.10/898 new Door No.142. Therefore, the description of the property is also differs and the suit filed by the respondent is maintainable. He further submitted that there is a delay of 5 years 11 months and 23 days. In the affidavit filed in support of the condone the delay petition, the petitioners themselves have categorically admitted that they are able to contact their counsel in the month of January 2007 and thereafter, they came to