Heirs of Subsequent Purchaser May Seek to Set Aside Ex-Parte Decree After 523-Day Delay; Madras HC Upholds Condonation of Delay

The petitioner, who was the plaintiff in O.S. No. 129 of 2002, sought a declaration that an auction was null and void, cancellation of a sale certificate, and a permanent injunction.

The fifth defendant applied to condone a delay of 523 days in filing a petition to set aside the ex parte decree; after his death, his legal heirs were brought on record.

The Subordinate Judge allowed the delay-condonation application, reasoning that the defendants should have an opportunity to contest the suit and imposing costs of Rs. 20,000 payable to the plaintiffs.

The plaintiff challenged that order under Article 227 of the Constitution.

The petition invoked Article 227 of the Constitution, under which the High Court considered whether the subordinate court’s order suffered from perversity warranting interference.

The delay application was made under Section 5 of the Limitation Act.

The Court’s reasoning reflects the principles that a court may permit a delayed application in the interests of substantial justice and that the opportunity to contest a suit, balanced against prejudice to the opposing party through costs, may support the exercise of that discretion.

No precedent was cited.

The High Court noted that the trial court had considered the nature of the relief sought and concluded that the plaintiff could still establish the case through evidence and submissions, while the fifth defendant should have an opportunity to contest the suit.

It also took account of the delay by noting the Rs. 20,000 costs imposed in favour of the plaintiffs.

Finding no perversity in the trial court’s exercise of discretion, the High Court declined to interfere under Article 227.

The Court dismissed the Civil Revision Petition. It directed the Subordinate Judge, Palacode, to dispose of O.S. No. 129 of 2002 within six months of receiving a copy of the order; no costs were awarded in the revision, and the connected miscellaneous petition was closed.