A party seeking to set aside an ex-parte decree or restore subsequent applications must demonstrate diligence and sufficient cause; a callous approach to proceedings and failure to prosecute diligently disentitles the party to equitable relief.

ORDER

The revision petitioner is the defendant in a suit for specific performance in O.S.No.26 of 2015 before the District Court, Tirupattur, Tirupattur District. The said suit came to be decreed ex-parte and the petitioner filed an application in I.A.No.19 of 2016, seeking to set aside the ex-parte decree. The said application in I.A.No.19 of 2016 came to be dismissed for default and in order to restore the said application, the petitioner filed an application in I.A.No.171 of 2017 under Section 5 of the Limitation Act, seeking condonation of delay of 494 days in filing an application to set aside the ex-parte decree. I.A.No.171 of 2017 was dismissed for non-prosecution and in order to restore I.A.No.171 of 2017, I.A.No.1 of 2024 was filed. The said I.A.No.1 of 2024 came to be dismissed by the trial Court, as against which, the present revision has been filed.

2.I have heard Mr.Pa.Sudesh Kumar, learned counsel for the revision petitioner and Mr.M.Himavanth, learned counsel for the respondent.

3.Mr.Pa.Sudesh Kumar, learned counsel appearing for the revision petitioner would submit that the suit is one for specific performance and the petitioner should be given an opportunity to contest the suit on merits, as otherwise his valuable property rights would be taken away by the respondent, under the guise of the suit sale agreement. He would also take me through the judgment passed by the trial Court and contend that the trial Court has not applied its mind to the essential factors that would have to go into deciding the suit for specific performance and therefore, according to the learned counsel for the petitioner, the judgment is also improper and in such circumstances, the Court should have taken a liberal view by affording an opportunity to the petitioner to contest the suit.

4.The learned counsel for the petitioner would further state that pursuant to the orders passed in the above revision petition, more particularly in CMP.No.22530 of 2024, the petitioner has also deposited a sum of Rs.15 lakhs before the District and Sessions Judge. Pointing out to the fact the respondent had prayed for an alternate relief of refund of advance of Rs.15 lakhs, the learned counsel for the petitioner would submit that no prejudice would be caused to the respondent, if the ex-parte decree is set aside and the suit is tried expeditiously, on merits and in accordance with law, as the interest of the respondent/plaintiff has been successfully safeguarded by paying the petitioner, by depositing Rs.15 lakhs which is the advance amount paid by the respondent.

5.Per contra, Mr.M.Himavanth, learned counsel appearing for the respondent would submit that the executing Court, pursuant to the ex-parte decree, has already executed the sale deed in favour of the respondent on 21.02.2018 and subsequently, in E.A.No.22 of 2018 in E.P.No.01 of 2017, the executing Court has allowed the delivery application on 23.08.2024 and possession itself has been taken on 09.09.2024.

6.It is the submission of the learned counsel for the respondent that the petitioner, suppressing all these material subsequent events, has approached this Court and obtained an interin stay. He would further state that even the factum of possession being taken has been recorded and what remains is only closure of the EP proceedings, which has not been done only because of the interim stay granted by this Court.

7.The learned counsel for the respondent would also submit that t