Delay in condoning application to set aside ex parte decree cannot be excused without sufficient explanation and diligence.

ORDER

This Civil Revision Petition is against the fair and decretal order, whereby, the Trial Court had dismissed the application to condone the delay of 320 days in filing an application to set aside the ex parte decree.

2. Mr.V.Achuthanandan, learned Counsel for the petitioner submits that the suit for Specific Performance had been initiated by the deceased sole respondent on the strength of an agreement of sale that he had entered with the first defendant from whom the petitioner had purchased the property. He submits that when the matter was listed for hearing on 01.09.2010, the petitioner was suffering from Jaundice and he was set ex parte on the said date and the suit was proceeded to be decided ex parte on 29.09.2010. Immediately, on knowing of the said fact, he had taken out an application to set aside the ex parte decree. Without considering the same, by only taking into consideration that pursuant to the Execution Petition filed in that regard, in which notice has also been served upon the petitioner, sale deed had been executed by the Court and therefore, there is no necessity to set aside the ex parte decree and hence, the delay need not be condoned. He submits that the execution of the sale deed pursuant to the execution proceedings cannot be put against the petitioner to reject his lawful claim to condone the delay in setting aside the ex parte decree and also to consider the application to set aside the ex parte decree. Hence, he seeks indulgence of this Court.

3. Countering his arguments, Mr.B.Sundarapandian, learned Counsel for the respondent Nos.2 to 4, who are the legal heirs of the deceased sole respondent, submits that the suit was decreed ex parte on 29.09.2010 and only after a year, the application to set aside the ex parte decree had been filed. He further submits that even in the Execution Petition, the petitioner had been set ex parte and he had not taken any steps to set aside such ex parte decree as he did not state any reason whatsoever as to why inspite of notice in the Execution Petition, he remained ex parte. He further submits that even though the application was filed on 14.09.2011, he had not taken any steps to get the aforesaid Interlocutory Application numbered and the same was numbered only in the year 2014. He further draws the attention of this Court that the order rejecting his application came to be passed in the month of January, 2016, but, the present Revision Petition is even though dated in the month June, 2016, has been filed before this Court in the month of August, 2016. This itself would show that the petitioner had not been diligent enough in prosecuting his claim. He submits that even though the Court below had held the application after the execution of sale deed had been completed, the decree could not be set aside, he submits that no explanation whatsoever had been given by the petitioner for the delay and he seeks dismissal of the Revision Petition.

4. I have considered the arguments made by the learned Counsel appearing on either side and perused the material records of the case. 5. It is an admitted case that the petitioner was set ex parte on

01.09.2010 and thereafter, the matter was decided ex parte on 29.09.2010. From the records, it can be seen that the petitioner had entered appearance and had also filed written statement and was aware of posting of the proceedings on 01.09.2010. A reading of the affidavit filed in support of his application to condone the delay do not disclose any step that he had taken to follow the proceedings on 01.09.2010 and there is no reason stated whatsoever as to why there was a delay of one year in filing an application to condone the delay. When no reasons have been attributed, this Court cannot come to the rescue of the petitioner. It had been categor