O R D E R

Defendants 2 and 3 in a suit for declaration of title, mandatory injunction and recovery of possession are the revision petitioners.

2.The respondents herein had filed O.S.No.313 of 2008 on the file of the Additional District Munsif Court, Tenkasi for the relief of declaration of title, mandatory injunction and recovery of possession. The defendants were set exparte and an expate decree came to be passed on 15.12.2009. Based upon the exparte decree, the decree holder had filed E.P.No.28 of 2010.

3.According to the revision petitioners, only after receipt of notice in the execution proceedings, they came to know about the fact that an exparte decree came to be passed. Therefore, the defendants filed I.A.No.407 of 2013 to condone the delay of 223 days in filing an application to set aside the exparte decree.

4.The plaintiffs/decree holders strongly resisted the said application on the ground that the judgment debtors have come out with a false case and the delay has not been properly explained. Accepting the contention of the decree holders, the trial Court had dismissed the condone delay application. Challenging the same, the present revision petition has been filed.

5.A perusal of the affidavit filed in respect of the condone delay application indicates that the first defendant had contended that, in the suit is the vendor of the defendants 2 and 3. The said first defendant had given assurance to the defendants 2 and 3 that he would engage a counsel and take of the proceedings and therefore, the defendants 2 and 3 were under the impression that the first defendant would take care of the case.

6.Secondly, defendants 2 and 3 have contended that in the last week of July 2008, they have left for Kottayam in Kerala as agricultural coolie and therefore, they could not pursue the suit proceedings. The defendants have further contended that after receipt of notice in the execution proceedings, when they enquired with the first defendant, he was evasive in his reply and after verification of the Court bundle on 28.07.2010, they came to know about the exparte decree and therefore, there is a delay of 223 days.

7.The decree holders had filed a counter contending that on

06.08.2009, the defendants have been set exparte and an exparte decree came to be passed on 15.12.2009. However, the present application has been filed only on 02.09.2010, even though, the judgment debtors have appeared in the execution proceedings on 01.04.2010. The decree holders had further contended that an order of delivery had been passed on 04.10.2013 itself and only thereafter, the defendants have pursued the said application which clearly shows that they are not interested in defending the proceedings.

8.The trial Court had found that the defendants have not properly explained the reason for the delay in filing an application to set aside the exparte decree. Even though the defendants were aware of the exparte decree on 28.07.2010, they have filed the application only on

26.08.2010. Therefore, the present application has been filed only to drag on the proceedings and to prevent the plaintiffs from enjoying the fruits of the decree.

9.Based on the above said findings, the trial Court had dismissed the application.

10.The learned counsel for the revision petitioners had contended that the exparte decree passed on 15.12.2009 would reveal that the Court has not discussed the pleadings or documents filed on the side of the plaintiffs but has simply decreed the suit on the ground that Exhibits A1 to A8 has been marked and the plaintiffs had proved the claim.

11.The learned counsel had relied upon the Division Bench Judgment of our High Court reported in 2011 (3) CTC 168 (Meenakshisundaram Textiles Vs. Valliammal Textiles Ltd.,) to contend that even in an exparte decree, the Court should consider the pleadings and evidence and arrive at a finding that whether the plaintiffs had made out a case for the decree or not. However, in the present case, the plaintiffs had not ma