THE HON’BLE MS.JUSTICE G.ROHINI CIVIL REVISION PETITION NO.3468 OF 2009 Dt.12.10.2009 Between: Mottaiahgari Pullappa …………..Petitioner Vs. Mottaiahgari Chennappa …………..Respondent. O R D E R: The petitioner herein is the plaintiff in O.S.No.140 of 2006 on the file of the court of the Principal Junior Civil Judge, Kadiri, which was filed for partition of the suit schedule properties. The respondent herein, who is none other than the brother of the petitioner is the second defendant. The first defendant was their father, who died pending the suit. The suit was decreed exparte on 24.06.2006 and thereafter the second defendant filed an application to set aside the exparte decree along with an application under Section 5 of the Limitation Act to condone the delay of 647 days. The said application was allowed on payment of costs of Rs.1,000/- and aggrieved by the same, the present revision petition is filed by the plaintiff. 2) It is not in dispute that in spite of service of summons, all the defendants remained ex parte and consequently, a preliminary decree was passed on 24.06.2006. Long there after, the respondent/second defendant filed an application to set aside the ex parte decree, dt.24.06.2006 along with I.A.No.601 of 2008 to condone the delay of 647 days in filing the said petition. 3) A detailed affidavit has been filed in support of the application to condone the delay, stating that the plaintiff assured them that the suit for partition would not affect the rights of any of the parties since by that time, the suit property was already transferred in favour of their sister by way of registered deeds. In the circumstances, none of the defendants contested the suit resulting in ex parte decree dated 24.06.2006. Even there after, since the plaintiff did not take any further steps, they were under the impression that the decree obtained would not affect the rights of any of the parties. However, when the plaintiff got published a notice in the local dailies, claiming absolute rights over the property in question asserting title under the exparte decree, the second defendant was restrained to file application to set aside the exparte decree. 4) Thus it was pleaded that the delay was neither deliberate nor intentional. Having been satisfied by the explanation offered for the delay and particularly in view of the fact that all the parties are closely related and that apart, the sister of the plaintiff and the second defendant by name Santhamma filed O.S.No.111 of 2008 for injunction, which is also pending, the court below thought it fit to condone the delay on payment of costs of Rs.1,000/-. 5) Having regard to the facts and circumstances of the case there was no reason to disbelieve the explanation offered and the discretion exercised by the court below in favour of the applicant can not be held to be arbitrary or perverse. 6) Hence, the impugned order needs no interference by this court in exercise of the jurisdiction under Article 227 of the Constitution of India. 7) Accordingly, the civil revision petition is dismissed. No costs. ___________ G.ROHINI J., Dt.12.10.2009 tjs