IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 12.06.2023 Delivered on: 29.04.2024 CORAM:

THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP C.R.P.No.2327 of 2021 and C.M.P.No.17658 of 2021 K.S.Nataraja Chettiar ...Petitioner/Petitioner/2^nd Respondent/

2^nd Defendant -Vs-

1.G.Ramesh ...1^st Respondent/1^st Respondent/

Petitioner/1^st Plaintiff

2.G.Srinivasan ...2^nd Respondent/2^nd Respondent/

Petitioner/2^nd Plaintiff

3.K.S.Govindha Chettiar ...3^rd Respondent/3^rd Respondent/

1^st Respondent/1^st Defendant Prayer:- Civil Revision Petition filed under Section 115 of CPC, to set aside the order dated 23.08.2021 made in I.A.No.1 of 2020 in I.A.No.687 of 2010 in O.S.No.53 of 1997 on the file of the learned Additional Subordinate Judge, Vellore, Vellore District.

For Petitioner : Mr.A.V.Arun for Mr.R.Sugumaran For R1 & R2 : Mr.J.Saravana Vel For R3 : No appearance

O R D E R

The Civil Revision Petition has been filed to set aside the order dated

23.08.2021, made in I.A.No.1 of 2020 in I.A.No.687 of 2010 in O.S.No.53 of 1997 on the file of the learned Additional Subordinate Judge, Vellore, Vellore District.

2. This Petition is filed by the 2^nd Defendant in the suit in O.S.No.53 of 1997. The suit in O.S.No.53 of 1997 was filed for relief of partition by the sons of the elder brother of the Revision Petitioner.

3. In the suit, the Revision Petitioner herein was impleaded as 2^nd Defendant. A preliminary decree was passed in favour of the Plaintiffs and against the 1^st Defendant. In the suit in O.S.No.53 of 1997, the 2^nd Defendant was set ex parte. The 2^nd Defendant is the paternal uncle of the Plaintiffs in O.S.No.53 of 1997. He had purchased the property through a registered Sale Deed from the father of the Plaintiffs, the 1^st Defendant in O.S.No.53 of 1997. After passing the preliminary decree, the Plaintiffs in O.S.No.53 of 1997 filed Petition in I.A.No.687 of 2010 in O.S.No.53 of 1997 for a final decree. In the final decree application, the 2^nd Defendant as 2^nd Respondent was set ex parte. Subsequently, the 2^nd Defendant as 2^nd Respondent filed Petition in I.A.No.1 of 2020 in I.A.No.687 of 2010 in O.S.No.53 of 1997, seeking to set aside the ex parte order passed against him in I.A.No.687 of 2010 in O.S.No.53 of 1997. The same was dismissed by the learned Additional Subordinate Judge, Vellore, Vellore District, by order dated 23.08.2021.

4. It is the submission of the learned Counsel for the Revision Petitioner that, by setting aside the ex parte order, the Revision Petitioner will be able to protect his share in the property which he derived from the father of the Plaintiffs in O.S.No.53 of 1997. If the Petition is not allowed, the Revision Petitioner will suffer injustice by not being allowed to participate in the final decree.

5. When the case came up for hearing on earlier occasion, on request of the learned Counsel for Respondents 1 and 2, the then learned Judge of this Court referred the matter for mediation. In the mediation, the dispute was not amicably settled. Therefore, once again, the case came up for hearing before the Court.

6. Learned Counsel for Respondents 1 and 2 submitted that the Petitioner as 2^nd Defendant was set ex parte in 2004 itself. Preliminary decree was passed on 16.03.2004, it had attained finality. The preliminary decree was granted in favour of the Plaintiffs' for 2/3 share and 1/3 share to the father of the Plaintiffs. The final decree proceedings commenced in I.A.No.687 of 2010 in O.S.No.53 of 1997. The report was filed by the Advocate Commissioner on 20.09.2012. I.A.No.563 of 2013 was filed by the Petitioner to condone the delay of 3393 days in setting aside the ex parte order. The said Petition was dismissed. Against which, the Revision Petitioner herein 2^nd Defendant in O.S.No.53 of 1997 had not filed any Revision or Appeal. It is the contention of the Petitioner that he was not served notice in all the proceedings. Hence, he did not appear. After 9 years, he had filed this Petition seeking to set aside ex part