Kasturi and Others vs Saravanan @ Sakthi Saravanan

R.S. Ramanathan, J.—Heard both sides

The defendants 8 and 9 in O.S. No. 349 of 1995, on the file of the Principal Subordinate Judge, Madurai, are the revision petitioners.

The suit was filed by the respondent herein for partition of 6/80th share in the ''A'' schedule item Nos. 1 to 3 and 1/12th share in the ''B''

schedule Item No. 1 to 10 and for mesne profits from the defendants 15 to 18, who are in illegal occupation of the Item No. 1 of the suit ""A

schedule properties.

The case of the plaintiff/respondent herein was that the property originally belonged to M.S. Ayyasamy Pillai, who got the property under a

partition deed, dated 21.12.1925 and he died on 20.05.1942 leaving behind his widow Sankarammal, his daughter Mrs. Vijayalakshmi and sons,

defendants 1,3 and 6 and other defendants. As M.S. Ayyasamy Pillai, died prior to Indian Succession Act 1956, the three sons are entitled to

1/4th share each in the house property viz., the ''A'' schedule property and in respect of ''B'' schedule property, which are agricultural properties,

the sons are entitled to 1/3rd share each. After the death of Sankarammal, the defendants 1,3 and 6 and her daughter Vijayalakshmi and

Sulochana inherited the share in the ''A'' schedule property. The 8th defendant is the daughter of the 6th defendant, who is son of M.S. Ayyasamy

Pillai and the 9th defendant is the wife of the 6th defendant. The suit was contested by the defendants 10,15,22 and 24 and they filed a written

statement. The 6th defendant remained ex-parte and the 8th and 9th defendant also remained ex-parte. Therefore, an ex-parte order was passed

against them and after the evidence of the plaintiff was closed and during the examination of the defendants witnesses, the 8th and 9th defendants

viz., the revision petitioners herein filed two petitions to set aside the ex-parte order passed against them. That application was dismissed by the

lower Court on the ground that they were set ex-parte on 22.08.1997 and the application was filed on 22.08.2000 after a lapse of 12-1/2 years

and therefore, relying upon the judgment reported in C.L. Cleetus Vs. South Indian Bank Ltd. and Another, . held that the application ought to

have been filed within three years, under Article 137 of the Limitation Act and having filed beyond the period, the petition is not maintainable.

Aggrieved by the same, these civil revision petitions are filed.

Mr. S. Ramesh, the learned Counsel appearing for the revision petitioners submitted that to set aside the ex-parte order, there is no period

prescribed under Limitation Act and before passing of the judgment and decree in the suit at any time the defendants, who were set ex-parte can

file an application to set aside the ex-parte order and the lower Court erred in following the judgment of the Kerala High Court and dismissed the

application.

He further submitted that as per the judgment reported in Pilla Reddy and Others Vs. Thimmaraya Reddy and Others, .& Palani Nathan Vs.

Devanai Ammal, , no period of limitation has been prescribed to set aside the ex-parte order and the application to set aside the ex-parte order

filed is in time.

Per contra, the learned Counsel appearing for the plaintiffs/respondents relied upon the judgment of this Court reported in Rajaji Vs. R.

Krishnaji, , wherein it has been specifically held that Article 137 of the Limitation Act applies in case where application is filed to set aside the ex-

parte order and as per the said article, within three years the order is to be set aside and hence, the petition has been rightly dismissed by the lower

Court and that need not be interfered with.

I have given my anxious consideration to the submissions made by both parties.

No doubt, in the judgment reported in Rajaji Vs. R. Krishnaji, , the learned Judge distinguished the difference between the ex-parte decree and

the ex-parte order and held that Article 123 shall apply only to ex-parte decree or ex-parte order, which have the force of decree and in so far as

setting aside the ex-parte order is concerned, the residuary Article 137 will apply which prescribes three years period and therefore, the petition

filed after a lapse of three years cannot be entertained. But, as pointed by the learned Counsel appearing for the petitioner, in the judgment of this

Court reported in Pilla Reddy and Others Vs. Thimmaraya Reddy and Others, . and in Palani Nathan Vs. Devanai Ammal, wherein the two

learned Judges of this Court have held that there is no time prescribed to set aside the ex-parte order and an ex-parte order can be set aside at any

time and the learned Judges referred the judgments of the Honourable Supreme Court in the case of Sangram Singh Vs. Election Tribunal, Kotah,

Bhurey Lal Baya, and also other judgments of this Honourable Court and held that there is no limitation for setting aside the ex-parte order. The

aforesaid two judgments were not brought to the knowledge of the learned single Judge who decided the case reported in Rajaji Vs. R. Krishnaji,

. In the judgment reported in Palani Nathan Vs. Devanai Ammal, , this Court has held that for filing the application under Order 9 Rule 7 CPC, no

limitation is prescribed and it is open to the Court to condone her absence and set aside the ex-parte order and permit her to take part in the

proceedings at any stage of the proceedings. Further relying upon the Supreme Court judgment reported in Sangram Singh Vs. Election Tribunal,

Kotah, Bhurey Lal Baya, , wherein their Lordships have held that there is no limitation for filing the petition under Order 9 Rule 7 CPC. Therefore,

as per the judgment of the Honourable Supreme Court, which was followed in Palani Nathan Vs. Devanai Ammal, , in my opinion, the lower

Court erred in following the judgment of the Kerala High Court and dismissed the petition.

According to me, the aforesaid two judgments of our High Court was not brought to the notice of the learned Judge who decided the case in

Rajaji Vs. R. Krishnaji, and the earlier two judgments of this Court followed the judgment of the Honourable Supreme Court and hence, I am

bound by the judgment of the Honourable Supreme Court, which was followed in Pilla Reddy and Others Vs. Thimmaraya Reddy and Others,

and Palani Nathan Vs. Devanai Ammal, .

Hence, the order of the lower Court is set aside and both the civil revision petitions are allowed. Consequently, connected Miscellaneous

Petition is closed. No costs.