C. Vediappan and another vs Krishnan and 2 others

R. Balasubramanian, J.—O.S. No. 50 of 1999 on the file of Sub Court, Krishnagiri is a suit for partition. Defendants 2 and 3 in that suit are the petitioners herein. An ex parte decree was passed in that suit. To set aside that ex-parte decree, an application under Order 9 Rule 13 of the CPC was filed along with the written statement. As there was a delay in filing the said application, it was accompanied by I.A. No. 553 of 2001 filed u/s 5 of the Limitation Act to condone the delay of 277 days in filing the said application. It was ordered on 7.2.2003 on condition that the petitioner pays a sum of Rs. 300/- as costs to the plaintiffs on or before 6.2.2003, failing which the application was to stand dismissed. The application was called on 7.2.2003 and finding that cost had not been paid, the said I.A. was dismissed. It is that final order that is in challenge. On going through the materials available on record, I am of the opinion that the learned Trial Judge ought to have extended the time at least once for payment of costs. Failure to extend the time had resulted in irreparable loss and injustice to the petitioners. The cost of Rs. 300/- is paid in open court today to the learned counsel appearing for the respondents. In the interest of justice the correct course to be followed is to allow I.A. No. 553 of 2001. Accordingly, the order under challenge is set aside. I.A. No. 553 of 2001 would stand allowed as prayed for. The suit is of the year 1999. The learned Trial Judge is directed to dispose of the suit in any event not later than 31.12.2003 and send a compliance report about the same to this Court. Consequently, the connected C.M.P. is also closed. No costs.