Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 249 (MAD)

Apphas & Others v. Chinnappa

2007-01-23

R.BANUMATHI

body2007
Judgment :- This Revision Petition is directed against the Order of the District Munsif, Krishnagiri made in I.A.No.1344/1996 In O.S.No.652/1995, dismissing the Petition filed under Section 5 of the Limitation Act to condone the delay of 108 days in filing the Petition to set aside the exparte Decree. 2. Brief facts are as follows :- The Respondent/Plaintiff has filed a Promissory Note Suit in O.S.No.652/1995 for recovery of Rs.25,250/-. The Revision Petitioners/Defendants resisted the suit contending that the suit pronote was not executed by them but was a forged one. The case was posted for trial on 06.03.1996. Due to the non appearance of the Defendants, they were set exparte and exparte Decree was passed against them on 06.03.1996. 3. Defendants have filed I.A.No.1344/1996 under Section 5 of the Limitation Act to condone the delay of 108 days in filing the application to set aside the exparte Decree. The Respondent/Plaintiff opposed that application. The lower Court dismissed the application observing that inspite of opportunity given to the Defendants, they have not taken steps to contest the matter. It was observed that they have filed application to set aside the exparte Decree only after Execution Petition was filed and the delay is not satisfactorily explained. 4. The learned Counsel for the Petitioner contends that only on account of the illness of the first Defendant, he could not attend the Court on 06.03.1996 and could not immediately file Petition to set aside the exparte Decree. According to the Defendants, they have a valid defence in the suit and therefore, an opportunity is to be given to them to contest the suit. 5. The reason stated for non-appearance on 06.03.1996 and non filing of application within time is stated to be due to illness of the first Defendant. Petitioners have not produced any material showing that the first Defendant was suffering from illness and hence he could not take steps. Apart from the first Defendant, there were two other Defendants. If really the first Defendant was suffering from illness, nothing prevented him from informing his counsel about his illness. 6. By perusal of records, it is seen that the Respondent /Plaintiff has filed E.P.No.115/1996 and the properties were attached and the Execution Petition was adjourned for further proceedings. The Defendants have filed the application to condone the delay in filing the application to set aside the exparte Decree. 6. By perusal of records, it is seen that the Respondent /Plaintiff has filed E.P.No.115/1996 and the properties were attached and the Execution Petition was adjourned for further proceedings. The Defendants have filed the application to condone the delay in filing the application to set aside the exparte Decree. When the Defendants have taken the plea of denial of execution, the Defendants ought to have been vigilant in pursing the matter. Though the delay appears to be a short range of delay, in consideration of the facts and circumstances of the case, it is to be held that the Defendants have not shown sufficient cause for condoning the delay. 7. The lower Court exercised its discretion in declining to condone the delay. When the lower Court has declined to condone the delay, the revisional Court would not interfere with unless the exercise of discretion is shown to be perverse or unreasonable. There is nothing to show that there is improper or unreasonable exercise of discretion in dismissing the application filed under Section 5 of the Limitation Act. 8. In the result, the order of the District Munsif, Krishnagiri, dated 112. 1997, made in I.A.No.1344/1996 in O.S.No.652/1995 is confirmed and this Revision Petition is dismissed. No costs. Consequently, CMP No.3169/1998 is also dismissed.