ROBIN GEORGE Vs. SEBASTIAN P. VARGHESE

JUDGEMENT

(1.) Issue is simple; but intricate. Do the provisions of Sec. 9 of the Limitation Act (for short 'the Act') have application to a motion under Sec. 5 of the Act?

(2.) Last day for filing the application for setting aside the exparte decree was 20/5/2017, but filed only on 6/4/2019 with a delay of 696 days. Reason for the delay from 20/5/2017 to 19/6/2017 was not explained, but the reason for the remaining period was explained. Sec. 9 of the Limitation Act says that when the time for filing a suit or making an application starts running, it would not stop on account of a subsequent disability or inability. The learned Sub Judge held that the provisions of Sec. 9 applies to an application under Sec. 5 of the Act. Accordingly, the application filed by the appellant for condonation of delay was dismissed saying that the delay from 20/5/2017 to 19/6/2017 was not explained. Legality of the said finding is essentially in question in this appeal.

(3.) The respondent filed O.S.No.101 of 2016 before the Sub Court, Ernakulam, for realisation of an amount of Rs.25.00 lakhs, together with its interest from the appellant and his assets. The appellant entered appearance in the suit on 30/7/2016. Time was granted to file written statement, but the appellant did not. As a result, the suit was decreed on 11/4/2017. The appellant filed I.A.No.1497 of 2019 for setting aside the exparte decree and I.A.No.1498 of 2019 for condonation of delay of 696 days. The respondent filed a written objection. The Sub Court after recording the oral evidence of the appellant as PW1 and receiving documentary evidence as Exts.A1 to A5, dismissed both the applications. Feeling aggrieved of the said orders, the appellant preferred this appeal.