BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 05.03.2024 PRONOUNCED ON: 18.04.2024 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD)No.2009 of 2023 and C.M.P.(MD)Nos.10042 and 13278 of 2023 K.R.Anandaswaroop : Petitioner/Respondent/Plaintiff Vs.

A.Anbarasu : Respondent/Petitioner/2^nd Defendant PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India against the order passed by the learned I Additional District and Sessions Judge (PCR), Thanjavur, in I.A.No.22 of 2023 in O.S.No.110 of 2017, dated 17.07.2023.

For Petitioner : Mr.V.Ramamoorthy For Respondent : Mr.G.Karnan

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.22 of 2023 in O.S.No.110 of 2017, dated 17.07.2023, on the file of I Additional District and Sessions Court (PCR), Thanjavur, allowing the petition filed under Order 9 Rule 7 C.P.C.

2. The revision petitioner as plaintiff has filed the suit in O.S.No.

110 of 2017 against the respondent and two others, on the file of the District Court, Thanjavur for recovery of Rs.30,36,000/- with interest and costs due on the mortgage loan obtained by one Amarsingh, father of the second respondent / second defendant, the third defendant and the husband of the deceased first defendant. After the death of the said Amarsingh, the above suit came to be filed against the legal representatives of the deceased Amarsingh. Since the defendants have not chosen to file the written statement, they were set exparte and an exparte judgment and decree came to be passed on 31.10.2018. The defendants have filed an application in I.A.No.4 of 2019 for setting aside the exparte decree dated 31.10.2018 and that the said petition came to be allowed on 04.01.2021. During the pendency of the said petition in I.A.No.4 of 2019, according to the respondent/second defendant, he has filed an application for setting aside the exparte decree dated 31.10.2018 along with the written statement and that the said petition was ordered to be returned for rectification of some defects, that the second defendant has represented with the delay of 1119 days in representing the petition filed under Order 9 Rule 13 C.P.C., and that the trial Court by condoning the delay vide order dated 09.06.2023, has taken the petition on file under Order 9 Rule 7 C.P.C., in I.A.No.15 of 2023, since the exparte decree was already set exparte at the instance of the defendants 1 and 3, that the trial Court, after reserving the said petition for orders, has suo motu reopened and sought for clarification with regard to the maintainability of the petition and that the second defendant has then filed an application under Order 23 Rule 1(3) C.P.C., seeking permission to withdraw the petitiion in I.A.No.15 of 2023 with liberty to file a fresh petition on the same cause of action in I.A.No.21 of 2023 and that since the revision petitioner/plaintiff's Counsel has endorsed no objection, the said petition was allowed and the second defendant was permitted to withdraw the petition in I.A.No.15 of 2023 with liberty file a fresh petition. In pursuance of the permission granted in I.A.No.21 of 2023, the second defendant has filed the present application in I.A.No.22 of

2023 under Order 9 Rule 7 C.P.C., for setting aside the exparte order dated 23.10.2018 passed against him.

3. The case of the respondent/second defendant in the petition filed under Order 9 Rule 7 C.P.C., is that he is residing at Salem and is doing pesticide business in Tamil Nadu, Kerala, Andhra and Karnataka and due to his business, he used to visit several places often, that his mother was looking after the case and as such, he was hoping that his mother would give details about the case, that his mother fell ill and could not attend the proceedings properly and hence, they could not file written statement in time, that an exparte order was passed on 23.10.2018 and that the second defendant would be put to hardship, if the exparte order is not set aside.