Delay in filing application to set aside ex-parte decree should be condoned when sufficient cause is established, especially in pending immovable property litigation.

O R D E R

Heard Mr.B.Azhagesh representing Mr.Vignesh for the Civil Revision Petitioner and Mr.A.Balakrishnan representing Mr.K.P.Narayana Kumar for the Respondent.

2. The defendant in a suit for specific performance is the civil revision petitioner. His application to condone the delay of 508 days to set aside the ex-parte decree dated 29.09.2016 came to be dismissed.

Hence, the revision.

3. O.S.No.20 of 2016 is a suit for specific performance of an agreement of sale said to have been entered into between the plaintiff and the defendant on 10.03.2014. The plaintiff called upon the defendant to execute the sale deed in terms of the aforesaid agreement on 14.03.2015. Since the defendant did not execute the sale deed, the plaintiff presented the suit.

4. It is the case of the plaintiff that the sale agreement was for a sum of Rs.3,25,000/-, and that he had paid a sum of Rs.3,00,000/- on 10.03.2014 itself, leaving a balance of Rs.25,000/-, which was to be paid within a period of one year from the date of the agreement. The defendant was served with summons. However, he did not file a written statement. Consequently, he was set ex parte and the suit was decreed as prayed for.

5. Pleading that he had left his village at Ambasamudram and shifted to the neighbouring State of Kerala for the purpose of vocation resulting in his non-appearance before the Court, the defendant took out an application to condone the delay of 508 days in filing the application under Order IX Rule 13 of CPC. He pleaded that he came to know about the decree only when the notice was served on him in the execution petition filed to execute the decree. Pleading that the delay was neither wilful nor wanton, he came forward with the aforesaid petition. This application was numbered as I.A.No.329 of

2018.

6. Notice was ordered in the application. The plaintiff filed a detailed counter. He opposed the application for condonation of delay tooth and nail. He pointed out that the defendant had entered appearance in the execution petition and that petitions under Section 5 of the Limitation Act and Order IX Rule 13 CPC were filed only 125 days thereafter. He also alleged that there were absolutely no bona fide in the application and that the same deserved to be dismissed.

7. The learned Subordinate Judge at Ambasamudram dismissed the application, holding that the petitioner had not made out sufficient cause. The learned Judge also found fault with the defendant for not having come forward with the application immediately after being served in the execution proceedings.

Aggrieved, the defendant filed the present Civil Revision Petition. 8. The learned counsel reiterated the contentions they had raised before the Court below. In addition, the learned counsel for the defendant submitted that it was not the intention of the defendant to delay the proceedings and that he had filed the written statement along with the petitions to condone the delay and to set aside the ex parte decree in order to establish his bonafide. He further submitted that the defendant was willing to pay reasonable costs in the event this Court decides to condone the delay.

9. Per contra, Mr.A.Balakrishnan urged that much water had passed after the ex parte decree. The plaintiff, as the decree holder, had presented the execution petition, got the sale deed registered in his favour. He asserts that he had taken possession of the property, pulled down the old superstructure, and had put up a new one. In response, the learned counsel for the defendant did not dispute the execution of the sale deed, but rejected the contention that p