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MANOHARAN, AGED 47 YEARS versus UNNIKRISHNAN NAIR, S/O.PARAMESWARAN

High Court of Kerala

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MANOHARAN, AGED 47 YEARS v. UNNIKRISHNAN NAIR, S/O.PARAMESWARAN - WP(C) No. 31749 of 2006(D) [2006] RD-KL 2218 (30 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 31749 of 2006(D)

1. MANOHARAN, AGED 47 YEARS,
... Petitioner

Vs

1. UNNIKRISHNAN NAIR, S/O.PARAMESWARAN
... Respondent

For Petitioner :SRI.P.S.RAMESH KUMAR

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :30/11/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

W.P.C.NO.31749 OF 2006 (D)

Dated this the 30 th day of November, 2006.



JUDGMENT

Petitioner is the defendant and respondent is plaintiff in O.S.505/01, on the file of Munsiff Court, Neyyattinkara. The suit was decreed ex-parte on 8.8.03. Plaintiff filed I.A.3880/04 and 38381/04, applications, under Section 5 of the Limitation Act to condone the delay, and application under Order IX Rule 13 of code of civil procedure to set aside the ex-parte decree. The trial court dismissed the applications. It was challenged before Sub Court, Neyyattinkara in C.M.A.3/05. On re-appreciating the facts, Sub court confirmed the order of the trial court and dismissed the appeal. It is challenged in this petition filed under Article 227 of Constitution of India.

2. Learned counsel appearing for petitioner was heard.

3. The suit was decreed ex-parte on 22.8.06. According to the petitioner he was unaware of the decree and it was brought to his knowledge only on 17.10.03. The application to set aside the ex-parte decree along with the application to condone delay was filed on 21.8.04. The question is whether the extra ordinary jurisdiction of this court is to be exercised to interfere on findings of the trial court and appellate court that there was no sufficient cause for condoning the delay. Though learned counsel appearing W.P.C.NO.31749 OF 2006 (D) 2 for petitioner vehemently argued that there was sufficient cause, on going through the orders, I find no infirmity in the findings of the court below. Even according to the petitioner he was aware of the decree on 17.10.03. The decree was passed on 8.8.03. The application to condone the delay and to set aside the decree were filed only on 21.8.04. The delay from 17.10.03 to 21.8.04 cannot be condoned unless each day's delay is properly explained. The only explanation offered was that he was advised to obtain copy of the decree and to prefer an appeal. But no appeal was filed. Much thereafter, the application verified. Both the court on facts found that there was no sufficient cause to condone the delay. Unless that findings are patently erroneous, no interference is warranted. The unexplained delay cannot be condoned on equity. The finding are on facts. I find no reason to interfere with the orders in exercise of the supervisory jurisdiction of this court under Article 227 of Constitution of India. Writ 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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