ORIENTAL INSURANCE CO. LTD. Vs. V. MANJUNATHA

JUDGEMENT

(1.) This matter is listed for admission today. Heard the learned counsel for the appellant and the learned counsel for the respondent.

(2.) This appeal is filed challenging the order dtd. 5/9/2017, passed in MVC Misc.No.7/2014 filed under Order 9 Rule 13 of CPC, on the file of the Principal Senior Civil Judge and MACT, Madhugiri.

(3.) The case of the appellant herein before the Trial Court while invoking Order 9 Rule 13 of CPC is that they came to know about the judgment and award passed in MVC No.968/2003 in the year 2014 and also there was a delay of 7 years 8 months in filing the petition. The same was resisted by the respondent by filing the statement of objections contending that there is an inordinate delay of 7 years 8 months in filing the petition. The Trial Court gave an opportunity to lead the evidence and the Company i.e., the appellant herein, examined one witness as P.W.1 and got marked the documents at Exs.P.1 to 10. On the other hand, the respondent not led any evidence and also not produced any document. The Trial Court after considering both oral and documentary evidence placed on record, particularly while assigning the reason in dismissing the petition, in paragraph No.11 taken note of the admission given by P.W.1 in the cross-examination that they were having the knowledge of the execution petition filed in the year 2007 and also represented through the counsel. In paragraph No.12, the Trial Court has taken note that when the warrant was issued, the counsel appeared and undertaken to make the payment in the execution petition in the year 2008 and also taken note of the documents produced by the petitioner before the Court and comes to the conclusion that the appellant herein was aware of the pending of the execution proceedings since from the year 2007 and on going through Ex.P.1 i.e., impugned judgment, it clearly discloses that the respondent Company has failed to appear before the Court inspite of due service of notice. The Trial Court also taken note of that what prevented in filing the petition immediately after coming to know about the same and no sufficient cause is shown for the inordinate delay of 7 years 8 months in filing the petition and hence dismissed the petition.