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2013 DIGILAW 1280 (MAD)

Sasikumar v. D. Duraisamy

2013-03-07

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. This Civil Revision Petition is filed against the order dated 19.9.2007 made in I.A.No.603 of 2006 in O.S.No.152 of 2005on the file of the learned District Munsif – cum – Judicial Magistrate, Perundurai refusing to condone the delay of 219 days in filing the application to set aside the exparte decree dated 29.7.2005. 2. The respondent herein filed a suit in O.S.No.152 of 2005 against the petitioner seeking for recovery of a sum of Rs.42,930/- with interest based on a promissory note. The suit came to be decreed exparte on 29.7.2005. The petitioner filed application under Section 5 of the Limitation Act on 04.04.2006 to condone the delay of 219 days in filing the set aside application. The said application was resisted by the respondent. The Court below rejected the said application by holding that the reason stated by the petitioner in the affidavit filed in support of the application is false. 3. Heard learned counsel appearing for the petitioner. Though notice was served on the respondent, he is not present either in person or through counsel. His name is also printed in the cause list. 4. The petitioner herein filed the application under Section 5 of the Limitation Act seeking to condone the delay of 219 days in filing the set aside petition. The exparte decree came to be passed against the petitioner on 29.7.2005 in a money suit. The petitioner, in the affidavit filed in support of the said application, stated that summon was not served on him. On the other hand, the respondent herein, in the counter affidavit filed in the said I.A., stated that after the decree passed in the said suit, he filed execution petition in E.P.No.97 of 2005 for attachment of salary of the petitioner herein and an order of attachment was also came to be passed therein, which was subsequently, made absolute. Thereafter, as per the said order of attachment, the amount was recovered from the salary of the petitioner and remitted into the Court by the garnishee. 5. As against the said order of attachment, the petitioner also preferred Civil Revision Petition before this Court in C.R.P.No.1398 of 2006. The petitioner did not comply with the conditional order passed by this Court while staying the said order of attachment. 5. As against the said order of attachment, the petitioner also preferred Civil Revision Petition before this Court in C.R.P.No.1398 of 2006. The petitioner did not comply with the conditional order passed by this Court while staying the said order of attachment. Therefore, the respondent herein contended that the only grievance of the petitioner is only as against the quantum of attachment and not against the very decree passed against him. 6. The Court below, after considering both the pleadings as well as the submissions made by the respective counsels, found that the contention of the petitioner that no summon was served on him is not factually correct. The Court below found, after verifying the court records, that the summon was served on the petitioner on 13.6.2005. Therefore, after receiving the summon on 13.6.2005, the petitioner failed to make his appearance on 06.07.2005 and consequently, the findings of the Court below is that the reasons stated by the petitioner in seeking to condone the delay is not genuine, on the other hand, it is a false statement. Therefore, the Court below has rejected the application. 7. By considering the facts and circumstances of the case as well as by considering the factual finding rendered by the Court below with regard to the service of summon on the petitioner, I find no irregularity or infirmity in the order passed by the Court below. The Court below has rightly rejected the application after having come to the conclusion that the reason stated by the petitioner in seeking to condone the delay is not genuine and on the other hand, it is false. Once the Court has come to the conclusion that the reason adduced in the affidavit filed in support of the condone delay application is not genuine, then the Court has to necessarily reject the application. If no sufficient cause is shown or cause shown is also not a justifiable one, the Court below has to necessarily reject the application and rightly the Court below had done so. Moreover, it is also a fact that the petitioner's salary is attached in E.P.No.97 of 2005 and the garnishee is also recovering part of the amount from his salary and remitting it before the Court. Moreover, it is also a fact that the petitioner's salary is attached in E.P.No.97 of 2005 and the garnishee is also recovering part of the amount from his salary and remitting it before the Court. In the Civil Revision Petition filed against such order of attachment, this Court has remitted the matter to the Court below to pass orders after following the procedures as contemplated in the Civil Procedure Code. 8. In so far as this Civil Revision Petition is concerned, as the petitioner has not given any convincing and valid reasons before the Court below and the Court has also come to the conclusion that the reason stated by the petitioner is false, I find that there is no merit in this Civil Revision Petition. 9. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, M.P.No.1 of 2009 is also dismissed.