Judgment : Though the matter was posted for settlement, since the appellant had agreed to pay a sum of Rs.40,000 to the 2nd respondent in full quit of the decree obtained by the said respondent against the father of the appellant, today the respondents’ counsel reports mat his clients are not willing for the terms. It is admitted that the execution petition was filed for a sum of Rs.78,000 in 1984. When the principal amount is Rs.2,80,000 after giving due credit to the payments made by the father of the appellant, the arrears being Rs.78,000 the respondent herein filed the execution petition. After the court’s suggestion, the appellant herein had deposited a sum of Rs,40,000 in full quit of the claim. But, however, the counsel for the respondents represented that the second respondent is not agreeable for any settlement, since the execution is levied for the balance of Rs.78,000 as on 1984. Before ever the disposal of the E.P., the appellant herein has filed the suit O.S. No.585 of 1988 on the file of the Sub-Court, Trichy for partition. The said suit has been dismissed for default on 3. 1993. 2. The appellant has filed the suit O.S. No.584 of 1972 for partition of his share. The suit has been filed against the father, the first respondent herein and the second respondent was also made a party. On 3. 1993, the suit was dismissed for default. On 23. 1993 the appellant filed an application I.A. No.273 of 1993 for restoration of the suit on the ground that though on 3. 1993 the appellant came to court, the bus suffered a break down and he could not reach the court till the afternoon and when he reached the court after lunch, he came to know through the counsel that the suit had been dismissed for default. Thereafter, he filed an application for setting aside the order of dismissal. However, the lower court not satisfied with the explanation given by the appellant, had dismissed the application I.A. No.273 of 1993 by order dated 3. 1994. As against this order, the present appeal has been filed. 3. The learned counsle for the appellant contended that the lower court has committed an error in dismissing the application because the lower court did not consider the explanation given by the appellant for his absence on the date of hearing. 1994. As against this order, the present appeal has been filed. 3. The learned counsle for the appellant contended that the lower court has committed an error in dismissing the application because the lower court did not consider the explanation given by the appellant for his absence on the date of hearing. However, the lower court has proceeded on the basis that there is contradiction between the statement in the affidavit and the evidence of the appellant and on that ground the explanation given by the appellant cannot be taken as true. Further the contradiction would establish that neither the appellant nor his counsel was present in court on 3. 1993. 4. On the contrary, the counsel for the respondent contended that the appellant has stated in the affidavit that he was held up on the way to the court on 9.3,1993 due to the brake down of the bus and he could not reach the court before ever the case was called. Subsequently he met the counsel on the same day and came to know about the dismissal of the suit. If this statement is correct, the appellant ought to have filed the application for the restoration of the suit either on 3. 1993 itself or at least on the very next day. The delay of nearly 20 days in filing the application for restoration of the suit, since the application has been filed on 23. 1993 has not been properly explained and hence the delay has to be construed that the appellant came to know about the dismissal of the suit only at a later point of time and not on 3. 1993. Hence the order of the court below is correct. 5.I carefully considered the contention of both the counsel. There is no dispute that the case was listed for hearing on 3. 1993. The appellant has stated in his affidavit that he was residing at Pathaikadu village 60 miles away from Trichy. On 3. 1993, he could not reach the court in time and meet the lawyer to instruct him that due to the break down of the bus in which he was travelling from his village there was a delay of three hours in reaching the court and in the mean time the suit has been dismissed for default. The non-appearance of the appellant on 3. 1993 is neither wilful nor wanton. 6. The non-appearance of the appellant on 3. 1993 is neither wilful nor wanton. 6. The second respondent herein has filed counter in which he has stated that the case was posted several times finally and there is no reason for the appellant to be absent on the hearing dates on several times. The suit is a frivolous litigation. The second respondent has also stated that the bald allegation, the petitioner’s presence was delayed due to the bus break down is a flase story. On 3. 1993 the case was called and since the appellant as well as his counsel were not present, the case was passed over and again called at 4.00 p.m. Even at that time both the counsel as well as the appellant were absent and hence the suit was dismissed for default. 7. A perusal of the order of the lower court clearly reveals that the court below was carried away by the contradictions between the statement of the appellant in the affidavit and in the evidence. In paragraph 6 of the order, the court below was clearly stated that on 3. 1993. When the case was listed for trial, neither the appellant nor his counsel was present and the case was dismissed for default at 4.30 p.m. Hence, the evidence of the appellant that he reached the court by 2.30 p.m. and from the counsel he came to know that the suit was dismissed for defult before ever he reached the court cannot be accepted. Further the lower court has stated that the appellant has given different reasons for the delay in reaching the court. But, however, the different reasons has not been discussed by the court below. The court below further proceeded on the basis that when the appellant was present on 3. 1993 itself before the court, after the case was disposed of, he ought to have filed an application for the restoration of the suit on the very same day, without making any delay in filing the application. On this ground, the court below has dismissed the application. 8. After due consideration of the reasonings given by the lower court, I am unable to agree with the findings or the reasonings of the court below for the simple reason that merely because the plaintiff/ appellant came to the court on the very same day on 3. On this ground, the court below has dismissed the application. 8. After due consideration of the reasonings given by the lower court, I am unable to agree with the findings or the reasonings of the court below for the simple reason that merely because the plaintiff/ appellant came to the court on the very same day on 3. 1993, though after the disposal of the suit, that does not mean that he ought to have filed the applciation on the very same day. The filing of the application before the court for setting aside the order of dismissal depending upon the convenience of the lawyer. If suppose the advocate was not free, on the said date, naturally no application could have been filed on the particular date. Due margin ought to have been given for filing the application and that is the reason why the period of limittion has been fixed as 30 days for filing the application either for setting aside the ex parte decree or restoration of the suit dismissed for default. Only in a case where the application has been filed beyond 30 days, it is necessary for the appellant to explain the delay. If it is within 30 days the statutory period of limitation, there is no question of the appellant given any explanation for the delay. Further it could be seen that the contradictions stated by the lower court cannot be of vital nature. It is true that there is some discrepancy in the time factor. It is to be seen that the appellant has not given any specified time in the affidavit filed in support of the petition. But, however, it seems in the evidence he had given the specified time at 1.30 which, I am of the opinion, may be on the advice of the advocate. It is not known as to when the parties were examined in court. The time lag has also to be taken into consideration while considering the minor discrepancies with regard to the time factor. Moreover, even though the second respondent has stated in the counter that the suit was posted for several times finally and on all the occasions neither the plaintiff nor the counsel was present, the relevant dates or the number of times the suit had been posted has not been stated in the counter. Moreover, even though the second respondent has stated in the counter that the suit was posted for several times finally and on all the occasions neither the plaintiff nor the counsel was present, the relevant dates or the number of times the suit had been posted has not been stated in the counter. But, of course the suit is pending for considerably long period for which without any material no one can be blamed and since the appellant had deposited a sum of Rs.40,000 under th6 direction of this Court and also considering the conduct of the appellant in depositing the amount, I am of the view mat the appellant can be given a chance to defend the case. 9. Hence, considering all the circumstances of the case, I set aside the order of the court below and allow the appeal The suit O.S. No.585 of 1988 has to be restored on file on condition that the appellant has to pay a cost of Rs.1,000 to the counsel for the second respondents herein with three weeks from today, failing which me appeal shall stand dismissal. 10. The appellant is at liberty to withdraw the amount deposited by him before mis Court.