N BALAKRISHNAN Vs. M KRISHNAMURTHY

JUDGEMENT

(1.) Leave granted.

(2.) Explanation for the apparently inordinate delay in moving an application was accepted by the trial Court under Section 5 of the Limitation Act, 1963, but the High Court in revision reversed the finding and consequently dismissed the motion. That order of the High Court has given rise to these appeals.

(3.) Facts barely needed for these appeals are the following: A suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex parte on 28-10-1991. Appellant, who was defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was dismissed for default on 17-2-1993. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation which can be summarised thus: Appellant engaged an advocate (one Sri MS Rajith) for making the motion to set the ex parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17-2-1993. When he got summons from the execution side on 5-7-1995 he approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter. On 4-8-1995 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate and hence rushed to the Court from where he got the disquieting information that his application to set aside the ex parte decree stood dismissed for default as early as 17-2-1993 and that nothing was done in the Court thereafter on his behalf. He also learned that has advocate his left the profession and joined as legal assistant of M/s. Maxworth Orcheads India Limited. Hence he filed the present application for having the order dated 7-2-1993 set aside.