@JUDGMENTTAG-ORDER
P.R. Shivakumar, J.@mdashThe parties are husband and wife. The wife filed the suit in O.S. No.138 of 2010 for a declaration of title and recovery of possession based on her claim that though the property has been purchased in the name of her husband, it was she who purchased it out of her own funds in the name of her husband. Unfortunately, the husband, who received summons in the suit and entered appearance, failed to file written statement and the same resulted in an ex-parte trial and a consequent ex-parte judgment and decree in favour of the wife as prayed for in the plaint.
2. Subsequently, the husband came forward with an unnumbered petition under Order IX Rule 13 CPC to set aside the ex-parte decree. As the said petition was filed with a delay of 331 days, it was accompanied by a petition under Section 5 of the Limitation Act. The said petition filed under Section 5 of the Limitation Act was taken on file as I.A. No.694/2011 in O.S. No.133/2010 on the file of the trial court. The reason assigned in the affidavit accompanying the petition was that he had gone to Kerala to eke his livelihood and was awaiting a call from the advocate, but unfortunately, he did not receive any call from the advocate. It is his further contention that only after the decree was sought to be executed by filing an Execution Petition and delivery was sought to be effected, he got the knowledge that the suit filed by his wife against him had been decreed ex-parte and immediately thereafter he made arrangements for filing the petition to set aside the ex-parte decree.
3. The wife filed a counter simply stating that the petition was not maintainable, since the husband had entered appearance in the suit by engaging a counsel. It was also contended therein that since her husband parted with the property by executing a settlement in favour of his sons on 10.03.2010 (during the pendency of the suit), he could not have any locus standi to file the petition.
4. The learned trial judge, after hearing both sides, came to a conclusion that the delay was not satisfactorily explained and accordingly dismissed the application by the impugned order dated 14.02.2012. As against the said order, the husband, who figures as the defendant in the original suit, has come forward with the present civil revision petition under Section 115 of the Code of Civil Procedure. It is represented by the counsel for the petitioner that the revision was filed under Section 115 C.P.C by mistake in stead of filing the same under Article 227 of the Constitution of India and that hence the same may be treated as a revision under Article 227 of the Constitution of India. The said request of the learned counsel for the petitioner is accepted by this Court and this petition is dealt with as a petition filed under Article 227 of the Constitution of India.
5. The arguments advanced by Mr.R.Subramanian, learned counsel for the petitioner and by Mr.T.Dhanyakumar, learned counsel for the respondent are heard. Copy of the impugned order and copies of the other documents produced in the form of typed set of papers are also perused.
6. The learned trial judge disbelieved the contention of the petitioner that he was away from the suit village as he had gone to Kerala to eke his livelihood, based on the endorsement made by the senior bailiff in the notice meant for service on the petitioner in the Execution Petition to the effect that he refused to receive the notice and also obstructed the senior bailiff from taking possession of the property and handing over the same to the respondent in accordance with the decree. In this regard, the plea of the petitioner is that the respondent, some how or other, prevailed upon the senior bailiff and made him return the notice in the Execution Petition as if the petitioner refused to receive the same. When the fact revealed in the return endorsement made by the senior bailiff is specifically disputed by the petitioner, without examining the concerned senior bailiff and affording an opportunity to the petitioner to cross examine him, the learned trial judge has chosen to believe the return endorsement and projected it as a ground for disbelieving the contention raised by the petitioner in his affidavit filed in support of the petition.
7. It is also pertinent to note that the petitioner himself entered the box as a witness and also examined another witness on his side, whereas no witnesses were examined on the side of the respondent, to discredit the evidence of PW1 and PW2. It is also seen from the records, besides being admitted by the counsel appearing for the parties, that prior to the passing of the exparte decree the petitioner executed a settlement deed, in favour of his sons and under such circumstances, it is not clear as to how possession of the property came to be secured without notice to the settles under the said settlement deed, even though the settles pendente lite shall be bound by the decree passed against the settlor.
8. A perusal of the impugned order will show that there is perversity in the finding of the trial court in so far as the discussion reveals that the learned trial judge approached with a closed mind, with a determination to dismiss the petition filed by the petitioner. Hence, this court does have no hesitation in holding that the order of the learned trial judge dated 14.02.2012 made in I.A. No.694/2011 in O.S. No.133/2010 is bound to be interfered with and set aside. However, in view of the delay caused by the petitioner, the petitioner is to be taxed with a cost. This court deems it appropriate to fix a sum of Rs.2,000/- as a reasonable amount that can be imposed as cost.
In the result, the civil revision petition is allowed. The order of the learned Principal District Munsif, Namakkal dated 14.02.2012 made in I.A. No.694/2011 in O.S. No.133/2010 is set aside. I.A. No.694/2011 shall stand allowed. The petitioner shall pay a sum of Rs.2,000/- as cost to the respondent. The learned trial judge (Principal District Munsif, Namakkal) is directed to take up the application for setting aside the ex-parte decree and dispose the same within a period of three weeks from the date of receipt of a copy of this order. In the event of the ex-parte decree being set aside and there being no challenge to such an order, the trial judge shall dispose of the suit within six months thereafter. Consequently, the connected miscellaneous petition is closed.
