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Judgment
Abdul Hadi, J.—This Civil Miscellaneous Petition is for excusing the delay of 644 days in filing A.S.S.R. No. 51509 of 1996. The said
appeal is against the ex parte preliminary decree for partition dated 25.7.1994 passed in favour of the 1st respondent herein who is the brother''s
widow of the appellant/petitioner. As against the said ex parte decree, two Interlocutory Applications in I.A. Nos. 950 and 1027 of 1994, were
filed, one for condoning the delay of 27 days in filing the application for setting aside the ex parte decree and another for setting aside the ex parte
decree. Both those I.As. were dismissed on 4.1.1996 and against the said dismissal C.R.P. No. 1665 of 1996 and C.M.A. 835 of 1995 on the
file of this Court, which are filed subsequently by the petitioner, also got dismissed on 22.7.1996. It is thereafter, on 30.7.1996, this first appeal
appears to have been filed. All that is averred in the supporting affidavit is that in view of the prosecution of the above said I.As., C.M.A. and
C.R.P., the petitioner was under the bona fide belief that he would meet with success there. But the learned counsel for the petitioner could not
point out before us any authority for excusing the abovesaid long delay on the aforesaid ground. Neither he could point out any particular Section
of the Limitation Act nor any decided authority, in support of his contention It is settled law that as against an ex parte decree, two concurrent
remedies are available to the aggrieved party, i.e., (1) to file a petition to set aside the ex parte decree and (2) to file an appeal. Nothing prevented
the petitioner from filing an appeal along with the abovesaid application to set aside the ex parte decree, at least after the dismissal of the said I.As.
on 4.1.1996. Even that has not been done.
The 1st respondent has filed a counter and learned counsel for the 1st respondent also opposes this application.
In the light of all the above said features, we are unable to hold that there is any sufficient cause for excusing the above said inordinate delay of
644 days. Accordingly, this C.M.P. is dismissed. Consequently, A.S. S.R. No. 51509 of 1996 will stand rejected and the appellant/petitioner will
be entitled to the refund of one half of the court fee paid on the memorandum of appeal, u/s 66(2) of the Tamil Nadu Court Fees and Suits
Valuation Act, 1955.