GEORGE THOMAS Vs. BINU THOMAS

JUDGEMENT

(1.) This appeal is filed against an order by which the Court below dismissed an application to set - aside the ex parte decree as a consequence of the refusal to condone the delay of 95 days in applying to set - aside the ex parte decree. The 82 year old appellant - defendant in the suit is the father - in - law of the plaintiff, who sued for specific performance of an alleged agreement for sale by the father - in - law.

(2.) The suit was decreed ex parte. The application to set - aside the ex parte decree and the application to condone the delay in applying to set - aside the ex parte decree were supported by affidavits filed by the power of attorney, duly appointed by the father - in - law. There was no counter - affidavit filed in opposition to the applications filed before the Court below. However, we are pained to note that the Court below, by a cryptic single line order, dismissed the application seeking condonation of delay by stating that 'there is no proper and convincing explanation for the delay of 95 days.' Apart from this sentence and the statement that 'so the petition is dismissed', the impugned order does not reflect consideration of any of the grounds which were offered as sufficient cause for the delay in filing the application to set - aside the ex parte decree. The grounds in support of the application to set - aside the ex parte decree also stand consequentially rejected.

(3.) The defendant has specifically stated in paragraph 4 of the appeal memorandum that he was laid up from March 2008 onwards and was admitted to S.U.T.Hospital, Thiruvananthapuram. He is supported by a pacemaker and thereafter, he had been suffering from different health problems, referable to diabetes. From April 2009 onwards, he is not in a position to move from bed. He resides in Adoor along with his daughter - in - law, who is a teacher at Kottarakkara.