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2010 DIGILAW 2259 (MAD)

K. S. Krishna v. Haj Mohamed

2010-06-08

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 16.12.2009 passed in I.A. No.98 of 2009 in O.S.No.23 of 2009 by the Sub Court, Thiruvarur, this civil revision petition is focussed. 2. Despite printing the name of the respondent, no one appeared and there is no representation on behalf of the respondent. 3. Heard the learned counsel for the revision petitioner. 4. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition, would run thus:- (i) The respondent herein filed the suit O.S.No.23 of 2008 based on mortgage and ultimately obtained an ex-parte preliminary decree on 28.11.2008. Subsequently, the revision petitioner herein filed the application to get set aside the ex-parte preliminary decree along with an application to get the delay of 244 days condoned in filing the said application. (ii) After hearing both sides, the lower Court dismissed the said application for getting the delay condoned. 5. Being aggrieved by and dis-satisfied with the said order, this revision is focussed on various grounds, the gist and kernal of them would run thus: The lower Courts approach in dismissing the application was not correct, as on health grounds alone the defendant could not appear before the Court and get the matter processed. 6. The point for consideration is as to whether there is any justification in condoning the delay of 243 days in filing the application to get set aside the ex-parte preliminary decree passed by the lower Court. 7. A mere poring over and perusal of the order of the lower Court would show that the lower Court took a very strict view of the matter by expecting the defendant to prove each and every days delay, and the lower Court also had in mind the merit of the original suit. At the time of condoning the delay in filing the application to get set aside the ex-parte decree, the Court is not expected to go into the merits of the original suit. 8. My learned predecessor, at the time of entertaining the revision petition passed order directing the revision petitioner to deposit a sum of Rs.1,00,000/-(Rupees one lakhs) to the credit of the said suit, which was duly complied with by the petitioner. 9. 8. My learned predecessor, at the time of entertaining the revision petition passed order directing the revision petitioner to deposit a sum of Rs.1,00,000/-(Rupees one lakhs) to the credit of the said suit, which was duly complied with by the petitioner. 9. The learned counsel for the petitioner would submit that along with the application to get set aside the ex-parte decree, the written statement also was filed. 10. The suit is based on mortgage. In such a case I am of the considered view that one more opportunity could be given to the petitioner to contest the matter. Furthermore, by way of showing the bona fides and also not to drag on the proceedings, the petitioner also deposited the sum of Rs.1,00,000/-(Rupees one lakh) in compliance with the order of this Court. Hence, taking a lenient view the order dated 16.12.2009 is set aside and the delay of 244 days in filing the application to get the ex-parte decree set aside is condoned. The revision petition is allowed. No costs. Connected miscellaneous petition is closed.