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2013 DIGILAW 769 (MAD)

Pooli Beer Mohammed v. M. Vasudevan

2013-02-05

D.HARIPARANTHAMAN

body2013
Judgment :- 1. The petitioner is the defendant and the respondent is the plaintiff in O.S.No.109 of 2009 on the file of the learned Principal Sub Judge, Tirunelveli. 2. The respondent herein/plaintiff filed a suit in O.S.No.101 of 2009, praying for declaration and permanent injunction against the petitioner/defendant in respect of some property. 3. The petitioner/defendant entered appearance, but failed to file written statement. Hence, the suit was decreed on 02.02.2010. 4. Thereafter, the respondent/plaintiff filed Execution Petition based on the decree referred to above. In the said Execution Petition, the petitioner/defendant filed a counter on 10.06.2011. Before filing counter on 10.06.2011, the petitioner/defendant entered appearance in the execution proceedings through an advocate on 04.03.2011. Still the petitioner/defendant did not take any immediate steps to file application to set aside the exparte decree and he filed I.A.No.631 of 2011 in O.S.No.101 of 2009 only on 11.11.2011, to condone the delay of 608 days in filing the application to set aside the exparte decree. 5. The learned Principal Sub Judge, Tirunelveli, passed an order dated 31.07.2012 in I.A.No.631 of 2011 in O.S.No.101 of 2009, dismissing the application on the ground that the petitioner failed to explain the reason for the delay. This revision petition is filed against the aforesaid order dated 31.07.2012 in I.A.No.631 of 2011 in O.S.No.101 of 2009. 6. The learned counsel for the petitioner has vehemently contended that the petitioner is aged 70 years and he was not able to move about and thus there was delay of 608 days in filing the application to set aside the exparte decree. 7. I have heard the submissions made by the learned counsel for the petitioner. 8. I am not inclined to agree with the submission made by the learned counsel for the petitioner. 9. The revision petitioner/defendant engaged an advocate in the execution proceedings and his counsel appeared on 04.03.2011 as disclosed in the counter affidavit of the respondent/plaintiff. Thereafter, the petitioner/defendant filed counter affidavit in the execution proceedings on 10.06.2011. Therefore, the petitioner/defendant cannot say that he was not able to file the petition to set aside the exparte order and therefore, there is no reason for not approaching the Court seeking to set aside the exparte decree atleast immediately on receipt of the notice in execution petition. Thereafter, the petitioner/defendant filed counter affidavit in the execution proceedings on 10.06.2011. Therefore, the petitioner/defendant cannot say that he was not able to file the petition to set aside the exparte order and therefore, there is no reason for not approaching the Court seeking to set aside the exparte decree atleast immediately on receipt of the notice in execution petition. After receiving the notice in the execution proceedings, he appeared through counsel on 04.03.2011 and thereafter, the counter affidavit in execution petition was filed on 10.06.2011. Hence, the reason given by the petitioner/defendant that he was aged and therefore, there was a delay in filing the application is liable to be rejected. In fact, the Trial Court has passed a reasoned order for rejecting the application of the petitioner/defendant. Para 9 of the order is extracted hereunder: "Tamil" The Trial Court also has considered the judgments rendered by this Court on the subject. 10. In the said circumstances, I am of the view that there is no infirmity in the order passed by the Trial Court and the revision petition is liable to be dismissed and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.