Madras High Court
Logambal vs K.Thalapathi on 27 February, 2025
Author: P.T.Asha
Bench: P.T.Asha
C.R.P.No.254 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.02.2025
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.No.254 of 2025
C.M.P.No.1608 of 2025
Logambal ...Petitioner
Vs
K.Thalapathi ...Respondent
PRAYER :- Civil Revision Petition is filed under Article 227 of the
Constitution of India, pleased to set aside the fair and decretal order
dated 21.10.2024 in I.A.No.1 of 2024 in O.S.No.325 of 2013 on the file
of the Sub Court, Paramathi and consequently allow the I.A.No.1 of
2024 in OS No.325 of 2013.
For Petitioner : Mr.T.Saikrishnan
For Respondent : Mr.C.E.Pratap
ORDER
The above Civil Revision Petition is filed by the defendant challenging the order dismissing her application for condoning the delay of 2725 days in filing the petition to set aside ex-parte decree. 1/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025
2.The facts which has given rise to the above Civil Revision Petition is herein below set out and parties are referred in the same ranking as before the trial Court.
The respondent/plaintiff had filed suit O.S.No.325 of 2013 on the file of the Sub Court, Namakkal, seeking specific performance of an agreement dated 04.11.2009. The respondent/plaintiff's case is that the suit property belong to the revision petitioner herein by virtue of a registered sale deed dated 09.04.2008. On 04.11.2009, the petitioner/defendant and the respondent/plaintiff had entered into an agreement of sale in and by which the defendant had agreed to sell the suit property to the plaintiff for a sale consideration of Rs.6,00,000/- and on 04.11.2009 when the agreement of sale was signed a sum of Rs.5,75,000/- was paid. The balance sum of Rs.25,000/- was to be paid within a period of two years from the date of agreement of sale. The plaintiff would submit that though he had been ready to proceed with the execution and registration of sale deed it was the defendant who was not coming forward to execute the same. Therefore, he was constrained to file the above suit.
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3.The defendant though served had not entered appearance in the proceedings and as a result, an ex-parte decree came to be passed by the Sub Court, Paramathi on 16.07.2014. Thereafter the plaintiff had filed E.P.No.70 of 2018 for execution of the sale deed in his favour. This application was allowed on 19.09.2023. Thereafter, plaintiff had filed E.P.No.4 of 2023 seeking possession of the property. This execution proceeding was filed on 21.12.2023.
4.At this juncture, the defendant had come forward to file I.A.No.1 of 2024 in O.S.No.325 of 2013 for condoning the delay in filing the petition to set aside the ex-parte decree. The defendant would contend that the transaction between herself and the plaintiff was purely a loan transaction and the sale agreement dated 04.11.2009 was executed and registered only as a security for the said loan. The fact that the defendant continued in possession of the property by letting it out to tenants is a clear indicator that the property is not in the possession of the plaintiff and it would clearly prove the case of the defendant that the transaction 3/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 between the parties is purely a loan transaction. The defendant would further submit that the suit summons was not served on her and it was only by way of a substituted service by publication in the newspaper that the defendant had been called absent and set ex-parte and an ex-parte decree came to be passed. The defendant would further go on to state that she is not aware about the proceedings in E.P.No.70 of 2018 and she had not received any summons in the said matter. It was only when they received summons in E.P.No.70 of 2018, that the defendant's husband realised the fraud that had been played upon them by the plaintiff and he had taken up himself the responsibility to take care of the litigation. The defendant was under the genuine impression that her husband was attending to the case while so her husband passed away on 04.06.2021 on account of the Corona Pandemic. In the light of the above circumstances, the fact of the filing of the suit and the ex-parte decree being passed against her was pushed to the back of her mind. Thereafter, when summons was received in R.E.P.No.4 of 2023 filed by the plaintiff for taking possession the defendant learnt that her husband had not taken any steps to set aside the ex-pare decree and therefore she has come forward with the petition in question and as a result there was a delay of 2725 days. On account of the aforesaid bonafide reasons, the same should be 4/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 condoned and set aside the ex-parte decree.
5.The plaintiff had filed a counter denying the contentions raised by the defendant and stating that it is purely an after thought and the defendant after having deliberately kept away from the proceedings despite being aware of the same was not entitled to discretion of this Court. That apart the plaintiff had contended that no valid reasons have been given for this inordinate delay. The learned Subordinate Judge, Paramathi, after hearing both the parties had proceeded to dismiss the said application on the ground that despite participating in the proceedings including the execution proceeding in E.P.No.70 of 2018, the defendant has not taken steps to take out an application for setting aside ex-parte at the earliest. In fact, after receiving the summons in E.P.No.70 of 2018 the defendant had entered appearance through counsel and despite coming to learn about the ex-parte decree no steps had been taken to set aside the same. It is only when the bailiff had attempted to take possession that the present application has been filed. Therefore, the conduct of the defendant clearly shows that the defendant has been totally indifferent and have not been diligent in prosecuting the proceedings. Aggrieved by the said order the defendant/petitioner is 5/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 before this Court.
6.Heard the learned counsels on either side and perused the records.
7.The main argument that has been put across by the defendant counsel is that possession is with the defendant as the respondent/plaintiff have themselves filed R.E.P.No.4 of 2023 for possession. Therefore, he would submit that the learned Judge ought to have set aside the ex-parte decree. On the contrary the learned counsel for the plaintiff would submit that despite been aware of the entire proceedings and the ex-parte decree the defendant has not taken any steps whatsoever to set aside the same and this Court cannot exercise discretion in favour of a person who has not availed the legal remedy at the earliest and has also not given sufficient reasons for setting aside the ex-parte decree.
8.The perusal of the records and the order of the trial Court would indicate that the defendant was first set ex-parte on 01.07.2014 and ex- 6/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 parte order was passed on 01.07.2014. Thereafter on 16.07.2014 the ex- parte decree had been passed. The defendant despite residing in the very same address as given in this revision petition and in the execution proceedings in E.P.No.70 of 2018, plaint, E.P, and C.R.P has deliberately refused to receive notice and this constrained the respondent/plaintiff to take substituted service through publication. Summons which has been sent by the executing Court to this address has been received by the defendant. Therefore, it is clear that the defendant has deliberately refused to receive the summons. Further the defendant had entered appearance in E.P.No.70 of 2018 where she has come to learn about the ex-parte decree passed against her. Despite coming to know about the same the defendant has not taken steps to set aside the ex-parte decre. E.P.No.70 of 2018 was allowed on 19.09.2023 and a sale deed executed in favour of the plaintiff. Even thereafter the application to set aside the ex-parte decree has not been filed. It is only on 24.01.2024 that the impugned application, the subject matter of this revision has been filed. In the affidavit filed in support of the petition to condone the delay no reasons have been given for the delay. In fact in her affidavit the defendant has contended that her husband on receiving notice in the execution petition had assured her the steps would be taken to set aside 7/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 the ex-parte order. She has stated as follows in paragraph No.10 of the affidavit:-
10.epiwntw;W kD miHg;ghizf;F gpwF vdJ fztu; nkw;go tHf;Ffis jhd; ftdpj;Jf; bfhs;tjhft[k;. fld; bjhif bfhLj;jhfp tpl;lJ/ mjdhy; tHf;Ffis ftdpg;gjhf Twp epiwntw;Wjy; kDtpid elj;jp te;jhh;/ nkYk; mry; tHf;fpy; vjph;tupy;yh jPu;g;ghizia ,uj;J bra;at[k; eltof;if vLj;J tUtjhft[k; vd;dplk; bjuptpj;jhh;/
9.The defendant's husband has passed away on 04.06.2021. The execution petition had been instituted in the year 2018. She would also submit that she had come to know about the ex-parte decree in the year 2021 itself. Though she had come to know ex-parte order in the year 2021 she had not taken any steps to set aside the ex-parte till the year 2024. The defendant cannot take advantage of the fact that she is in possession of the property to seek condonation of delay particularly when she has consciously not taken steps to set aside the ex-parte decree admittedly from the year 2018 onwards. Therefore, taking note of the aforesaid conduct of the defendant the Court below has rightly rejected the application for condoning the delay. Therefore, I see no reason to 8/11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm ) C.R.P.No.254 of 2025 interfere with the order of the learned Sub Judge, Paramathi.
10.Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
27.02.2025
Index : Yes/No
Internet : Yes/No
Speaking Order/Non Speaking Order
ep
To
The Sub Court, Paramathi.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/04/2025 08:02:11 pm )
C.R.P.No.254 of 2025
P.T.ASHA, J,
ep
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