Heard both sides.
2. This revision has been directed against the order passed in I.A.No.239 of 2008 in O.S.No.540 of 2003 on the file of the Court of Subordinate Judge, Tiruppur, an application under Section 5 of the Limitation Act to condone the delay of 1223 days in filing a petition to set aside the exparte decree passed against her on 20.7.2004. According to the revision petitioner, the allegation of the plaintiff in O.S.No.540 of 2003 is that the defendant's son had executed a promissory note in favour of him and thereafter, he failed to repay amount. To realise the said amount, he has filed O.S.No.540 of 2003 against the promiser under the promissory note, since the promiser of the promissory note died, the suit was filed against his mother, who is the only legal heir.
3. According to the learned counsel appearing for the revision petitioner , there was no proper service of summons on her which resulted in an exparte decree passed against her on 20.7.2004 . The revision petitioner came to know about the exparte decree only after receiving the notice in E.P.No.74 of 2007 in O.S.No.540 of 2003 and thereafter, she filed an application to set aside the exparte decree along with the application to condone delay of 1223 days under Section 5 of the Limitation Act. A reading of the order of the trial Court in I.A.No.239 of 2008 in O.S.No.540 of 2003 will go to show that since the revision petitioner had refused to receive the summon, the said summons were returned as" refused". Further, the revision petitioner is aged 70. The learned counsel appearing for the revision petitioner would represent that the revision petitioner has valid defence in the suit. Under such circumstances, I am of the view that an opportunity must be given to the revision petitioner, taking into consideration, the age of the revision petitioner, on payment of cost of Rs.5000/- to the other side.
4. In fine, this civil revision is allowed on condition, the petitioner pays a sum of Rs.5,000/- (Rupees Five thousand) only to the other side on or before 20.4.2009 failing which this civil revision shall deem to have been dismissed. On compliance of the condition, the learned Subordinate Judge, Tiruppur shall restore O.S.No.540 of 2003 on his file and after giving an opportunity to the revision petitioner/defendant to file her written statement, dispose of the same in accordance with law, within a period of three months thereafter. Consequently, connected M.P.No.1 of 2009 is closed.
02.04.2009 Index:Yes Index:yes sg Note:Issue order copy today(2.4.2009) To the Subordinate Judge, Tirupur.
A.C.ARUMUGAPERUMAL ADITYAN,J sg C.R.P(NPD)No.718/2008 02.04.2009