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2010 DIGILAW 2344 (MAD)

P. Chinnasamy v. K. L. Palanisamy

2010-06-10

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 31.10.2007 passed in by the Sub Court, Tirupur, in I.A.No.510 of 2007 in O.S.No.210 of 1999, this civil revision petition is focused. 2. The short and long of the relevant facts absolutely necessary and germane for the disposal of this civil revision petitioner would run thus: (i) An ex-parte decree was passed in favour of the respondent herein in O.S.No.210 of 1999 which is a money suit for recovery of Rs.2,90,084/- with interest and costs. (ii) According to the plaintiff summons was taken to the known address, but it was returned as refused. Whereupon paper publication was effected and since there was no response, ex-parte proceeding went on and it fructified in the form of ex-parte decree dated 4.7.2000. Subsequently, E.P.was filed and E.P.notice was served on the judgement debtor, namely, the revision petitioner herein on 25.8.2006. However, the application for getting the delay of four months condoned in filing the application to get set aside the ex-parte decree was filed on 15.12.2006. (iii) The trial Court heard both sides and dismissed the application. 3. Being aggrieved by and dis-satisfied with the said order this revision is focussed on various grounds, the gist and kernel of them would run thus: (a) The lower Court failed to appreciate the genuine grounds as set out in the affidavit accompanying the application for getting the delay condoned. (b) In fact, there was no wilful negligence on the part of the revision petitioner herein in pursuing the matter. (c) The revision petitioner had contacted the respondent/decree holder, who stated that he would not press the E.P. but subsequently, the revision petitioner came to understand that the promise made by the respondent/decree holder was nothing but a stooge to side track the petitioner and to prevent him from pursuing the matter. 4. Whereas the learned counsel for the respondent/plaintiff/decree holder would submit that the explanation as put forth by the revision petitioner before the lower Court was far from reality and it was nothing but a nancy story or cock and bull story purely dished out for the purpose of hook or crook get the delay condoned. 5. The point for consideration is as to whether there is any infirmity or irregularity in the order passed by the lower Court. 6. A mere perusal of the records would clearly display and demonstrate that there is enormous delay. 5. The point for consideration is as to whether there is any infirmity or irregularity in the order passed by the lower Court. 6. A mere perusal of the records would clearly display and demonstrate that there is enormous delay. No doubt the revision petitioner would put forth and set forth his plea that no proper summons was served and only on substituted service the court held that there was proper service and it is on that basis ex-parte decree emerged. Even for argument sake it is taken that up to the service of E.P.notice the revision petitioner was not aware of the proceedings, at least after receipt of the E.P.notice the revision petitioner should have swung into action in seeing that the ex-parte decree was get set aside as against him. But he has not done so. However, he had come forward with some explanation which is found to be too a big pill to swallow. 7. Be that as it may, inasmuch as it happened to be a money suit and that any loss could be compensated by way of awarding monitory damages, in the interest of audi alteram partem and by taking a lenient view, I would like to condone the delay subject to the following conditions. (i) Half of the suit amount i.e. a sum of Rs.1,50,000/-(Rupees one lakh and fifty thousand only) should be deposited in the account of O.S.No210 of 1999 before the lower Court on or before 23.7.2010. (ii) On such deposit, the trial Court shall invest the same in re-investment plan till pending disposal of the suit. Whereupon the ex-parte decree shall stand set aside and the matter shall be processed as per law. If there is any default on the part of the revision petitioner herein in depositing the amount as ordered supra then the benefit of this order would not enure to his benefit. The civil revision petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.