A co-defendant lacks locus standi to challenge the order setting aside an ex-parte decree in a partition suit.

O R D E R

This Civil Revision Petition challenges the order passed by the learned Additional District and Sessions Judge(Fast Track Court), Kumbakonam in I.A.No.57 of 2021 in O.S.No.119 of 2014, dated 25.11.2022.

2.O.S.No.119 of 2014 is a suit for partition and separate possession filed by one Sengalani. He arrayed the Civil Revision Petitioner as the first defendant and the contesting respondent as the second defendant in the suit. The third defendant is the brother of the plaintiff, like the second defendant. Defendants 4 to 6 seem to be strangers to the family. The seventh defendant is the purchaser from the first respondent. Summons was sent to the defendant.

3.The second defendant took a plea that on service of summons, he had contacted the plaintiff. The plaintiff reported that if the second defendant could send a vakalath to him, he would engage a lawyer on his behalf and contest the suit. The second defendant had handed over the vakalath to the plaintiff to engage a counsel on his behalf and contest the suit. However, the suit was set ex-parte. During the relevant point of time, the second defendant was residing in United Arab Emirates. The suit came to be decreed granting a share to the plaintiff in one schedule of the property and insofar as the claim made by the second defendant is concerned, the suit was dismissed.

4.Pursuant to the grant of decree, the second defendant came to know that the claim of the first defendant had stood accepted and claim of the plaintiff was partly decreed. He came to know of this fact only when the first defendant attempted to alienate the property along with the help of the seventh defendant. Immediately, he filed an application to condone the delay and to set aside the ex-parte decree passed by the Court on 17.3.2017.This application was received as I.A.No.57 of 2021. The learned Judge ordered notice in the said application.

5.In the meantime,the Plaintiff had passed away and his wife, one Renuga Devi was impleaded as the eighth respondent to the said application. Apart from the second defendant, the other defendants did not file any counter.

6.The first defendant took a plea that the application filed to condone the delay and to set side the same is not maintainable. He pleaded that it is a decree on merits and after contest, the said suit was decreed, insofar as the ‘A’ schedule mentioned property, and that the suit had been dismissed with respect to ‘B’ and ‘C’ schedule properties. He took a plea, that if at all, the second defendant is aggrieved, the only remedy is to file an appeal and not to maintain an application under Order 9 Rule 13 r/w Section 5 of the Limitation Act.

7.The learned Trial Judge, after considering the respective pleas, came to the conclusion that the second defendant had not appeared before the Court and thus was set ex-parte. He further pointed out that, being a suit for partition, though the second defendant has not given a sufficient cause for the delay, he decided to exercise his discretionary jurisdiction and allowed the application on terms. He imposed a cost of Rs.3000/- to be paid by the second defendant in favour defendants 3 and 7. The costs were also deposited and the delay was condoned.

8.Aggrieved by the same, the first defendant is on revision before this Court. The plaintiff’s legal heirs are not aggrieved by the delay being condoned in the application filed to set aside the ex-parte decree.

9.I heard Mr.M.R.S.Prabu,learned counsel for the Petitioner, Mr.H.Lakshmi Shankar, learned counsel for the first respondent, Mr.B.Jameel Arasu, learned counsel for the respondents 2,4 and 5.Though this Court has appointed one Mr.J.Prave