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SIVAKUMAR versus R.SENGODAN

High Court of Madras

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Sivakumar v. R.Sengodan - CRP.NPD.651 of 2007 [2007] RD-TN 2095 (27 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 27-6-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD No.651 of 2007

and

MP No.1 of 2007

1.Sivakumar

2.Dharmalingam .. Petitioners vs

R.Sengodan .. Respondent Civil revision petition preferred under Article 227 of the Constitution of India against the fair and decretal order dated 5.12.2006 made in I.A.No.628 of 2004 in O.S.No.157 of 2002 on the file of the Principal Sub Court, Erode. For Petitioners : Mr.N.Manokaran For Respondent : Mr.S.Kaithamalaikumaran for Mr.A.K.Kumarasamy ORDER



Challenging an order of the Principal Subordinate Judge, Erode, made in I.A.No.628 of 2004 to condone the delay of 656 days in making an application to set aside an ex-parte decree made in O.S.No.157 of 2002, a suit for recovery of the advance amount, which was given at the time of the agreement for sale of an immovable property, this revision has been brought forth.

2.The Court heard the learned Counsel on either side.

3.The respondent herein filed O.S.No.157 of 2002 alleging that there was an agreement for sale; that it did not fructify; that the advance amount was Rs.1.00 lakh, and it was to be repaid. The defendants, who are the revision petitioners herein, had entered appearance through the Counsel; but, they were set ex-parte for their non-appearance on 22.11.2002. The ex-parte decree came to be passed on 29.11.2002. Thereafter, the E.P. was laid for the recovery of the said amount. On entering appearance in the execution proceedings, the defendants, the petitioners herein, sought for stay in E.A.No.795 of 2005. The same was allowed on condition of the petitioners herein who were the judgment debtors in the E.P., making a deposit of Rs.1.00 lakh within the stipulated time. Aggrieved over the said order, they preferred C.R.P.No.127 of 2006, which was also allowed by this Court on condition of the petitioners making a payment of Rs.25,000/- at the first instance, and thereafter, another Rs.25,000/-, and the stay was extended till the time of the disposal of the application for condonation of delay pending on the file of the Principal Subordinate Judge, Erode. On enquiry, I.A.No.628 of 2004 was dismissed. Now, this revision has been brought forth challenging the said order.

4.The only contention put forth by the learned Counsel for the petitioners is that it is true that there was a delay of 656 days in making the application to set aside the ex-parte decree; that originally, they filed the vakalath through Counsel; that they did not file the written statement; that the matter was not intimated to them by the Counsel; that there was shifting of residence by the defendants; that apart from that, it was not brought to their notice; that when they came to know that the suit has been decreed ex-parte, they changed the Counsel, and they filed the application; that Rs.50,000/- has already been deposited; that under the circumstances, the lower Court should have considered the reasons adduced, and allowed the application, but not done so, and hence, the order of the lower Court has got to be set aside, and the delay has got to be condoned.

5.According to the learned Counsel for the respondent, all the averments found in the affidavit in support of the application, were false; that it is true that they were set ex-parte on 22.11.2002, and an ex-parte decree came to be passed on 29.11.2002; that immediately, on 5.12.2002, an application to set aside the ex-parte decree was filed in time along with an affidavit in support of the application; that under the circumstances, they cannot now come forward to say that they had no knowledge about the proceedings; but, they left the matter in lurch; that they filed the instant application subsequently to condone the delay of 656 days; that even to condone such a huge delay, no acceptable reason was adduced; that the lower Court pointing to the same, has dismissed the application, and hence, the order has got to be sustained.

6.After careful consideration of the rival submissions made, this Court is of the considered opinion that the order of the lower Court does not require interference for more reasons than one. It was a suit for recovery of money in which the defendants appeared through Counsel. But, they did not file the written statement, which would be indicative of the fact that they have got the knowledge about the proceedings. The written statement was not filed in time. Then, they were set ex-parte on 22.11.2002, and an ex-parte decree has been passed on 29.11.2002. It is pertinent to point out at this juncture that they have also filed an application to set aside the ex-parte decree in time on 5.12.2002. Thus, they not only knew but also were conscious of the fact; but, they were not following the same for nearly about 656 days. Thereafter, they came with the instant application stating that the Counsel did not intimate them, and there was shifting of residence, and neither they have knowledge about the proceedings, nor they were conscious of the fact that the ex-parte decree has been passed. It was the utter carelessness on the side of the petitioners to take such a time of 656 days. It is well settled that in a case of condonation of delay, the Court must take a liberal view; but, at the same time, as far as the condonation of delay is concerned, the Court should not do so on exercising equity. If it is done, it would be nothing but extension of limitation what is not available to a party under an enactment. Under the circumstances, this Court is of the opinion that in the absence of sufficient and convincing reasons in such a case, the Court should not excuse the delay. Hence, the delay cannot be condoned. The lower Court was perfectly correct in dismissing the application. Nothing requires interference.

7.In the result, this civil revision petition fails, and the same is dismissed. No costs. Consequently, connected MP is also dismissed. 27-6-2007 Index: yes/no

Internet: yes/no

To:

The Principal Subordinate Judge

Erode

nsv/


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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