EYOCHAN Vs. JOSAFINA

JUDGEMENT

(1.) The order on I.A. No. 133 of 2008 in C.M.A. No. 34 of 2000 on the file of the Court of the Subordinate Judge, Cherthala is under challenge in this appeal.

(2.) The appellant is the defendant in O.S. No. 692 of 1996 on the file of the Court of the Munsiff, Cherthala. The said suit was one for realisation of money. The appellant did not contest the suit. Consequently, the suit was decreed ex parte. Later, an item of property owned by the appellant was brought for sale and purchased by the respondent, who is the plaintiff in the suit, in execution of the said decree. The property sold was 18.5 cents of land with a residential building. After the sale, an application as E.A. No. 723 of 1999 was filed by the appellant to set aside the sale, alleging that the sale was vitiated by material irregularities. E.A. No. 723 of 1999 was dismissed on merits on 30.5.2000. Challenging the order on E.A. No. 723 of 1999, the appellant preferred C.M.A. No. 34 of 2000 before the Court of the Subordinate Judge, Cherthala. On 19.11.2001, C.M.A. No. 34 of 2000 was dismissed for default for not taking steps to serve notice on the respondent. Later on 23.1.2008, an application, I.A. No. 133 of 2008 was filed by the appellant invoking Order XLI Rule 19 of the Code of Civil Procedure, for re-admission of the appeal which was dismissed for default. Though the application was filed long after the dismissal of the appeal for default, there was no separate application to condone the delay. Instead, a prayer was made in I.A. No. 133 of 2008 itself to condone the delay of 2256 days in filing the appeal. The respondent opposed I.A. No. 133 of 2008 by filing a counter-affidavit. Since the application was opposed, the appellant gave evidence as P.W. 1 in support of I.A. No. 133 of 2008. He had also examined a witness on his side as PW2. The appellate court, on an appraisal of the materials on record, found that the appellant has not shown any cause for condoning the long delay of 2256 days in filing the appeal. Consequently, I.A. No. 133 of 2008 was dismissed. As stated above, it is aggrieved by the decision on I.A. No. 133 of 2008, the appellant has come up in this appeal.

(3.) Heard the learned counsel for the appellant and the learned counsel for the respondent.