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K.J.REGHU, S/O.K.J.JINARAJAN versus M/S.NILAN ENTERPRISES

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K.J.REGHU, S/O.K.J.JINARAJAN v. M/S.NILAN ENTERPRISES - CRP No. 257 of 2006 [2006] RD-KL 2198 (30 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 257 of 2006()

1. K.J.REGHU, S/O.K.J.JINARAJAN,
... Petitioner

Vs

1. M/S.NILAN ENTERPRISES,
... Respondent

2. M/S.HOME CLUB SERVICES (FIRM NOT IN

3. K.J.DILEEP, AGED ABOUT 46 YEARS,

For Petitioner :SRI.M.RAMESH CHANDER

For Respondent :SRI.JOHN NUMPELI (JUNIOR)

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :30/11/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

C.R.P.NO. 257 OF 2006

Dated this the 30 th day of November, 2006.



JUDGMENT

Petitioner is the third defendant in O.S.755/91. The suit is for realisation of Rs.1,60,350.35/-. The suit was decreed ex-parte on 30.3.95. In fact the petitioner did not appear before trial court. Summons was not be personally served. Publication was ordered. When on the failure of the petitioner to appear, he was set ex-parte on 24.2.99. Petitioner filed I.A.5857/02 and 5858/02 to set aside ex-parte decree and to condone delay, only on 20.10.02. Case of petitioner was that he was not aware of the decree and no summons was served on him and therefore the delay is to be condoned. The trial court dismissed the applications holding that there is no sufficient cause to condone the delay Trial court dismissed both the applications. Petitioner challenged that order in C.M.A.25/04. Learned District Judge re-appreciated the facts and evidence and confirmed the order and dismissed the appeal. It is challenged in this revision petition filed under Section 115 of Code of Civil Procedure.

2. Argument of the learned counsel appearing for petitioner was that before the District Court, when C.M.A was pending, to show the bona fides of the petitioner, he had furnished bank guarantee for the decree debt and as per order dated 29.5.06, this court also directed petitioner to furnish bank guarantee for 3.5 Lakhs and it was furnished and in such circumstances, an opportunity should have been granted to the petitioner to have a decision on merit. Learned counsel appearing for respondent argued that there is absolutely C.R.P.NO. 257 OF 2006 2 no reasonable cause to condone delay and the finding of the court below that there was no sufficient cause is perfectly correct and the factual finding cannot be interfered in exercise of the revision jurisdiction by this court.

3. Even if the case of petitioner that he was not aware of the pendency of the suit or the decree is accepted, it cannot be disputed that petitioner appeared before the executing court on 27.9.01. When petitioner appeared before the executing court, where the decree against him was being executed by the respondent, petitioner cannot be heard to contend that he was not aware of the decree at least on 27.9.01, if not in July, 2001 when the notice in the execution petition was served on the petitioner. Still the application under Order IX Rule 13 to set aside the decree along with the application to condone the delay were filed only on 20.12.02. As rightly pointed by the courts below, there is absolutely no valid explanation for the said delay. The findings of the courts below that there was no reasonable cause to condone the delay from 7.7.01 to 20.12.02 is perfectly correct. The findings of fact cannot be interfered in exercise of the revisional jurisdiction. The fact that petitioner furnished bank guarantee by itself is not a ground to interfere with the order passed by the courts below which is factually. Civil revision petition is dismissed. M.SASIDHARAN NAMBIAR,

JUDGE.

bkn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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