VELAYUDHAN Vs. C.SURESH

JUDGEMENT

(1.) This appeal is filed challenging the common order passed by the Subordinate Judge's Court, Palakkad in the applications filed for setting aside the ex-parte decree in O.S.No.205 of 2010 and for condoning the delay in filing that application.

(2.) After several adjournments the suit had come up for trial before the lower court on 3.7.2016. Since 3.7.2016 was a holiday, the suit was adjourned for trial to 4.7.2016. On that day the counsel for the defendant reported no instructions and consequently the defendant was set ex-parte by the lower court. On 7.7.2016 an ex-parte decree against him was passed granting a decree for specific performance. Thereafter, on 14.2.2017 the defendant filed an application as I.A.No.569 of 2017 for setting aside the ex-parte decree against him and also another application as I.A.No.568 of 2017 for condoning the delay of 222 days in filing the application I.A.No.569 of 2017. The defendant had contended before the lower court that he was under treatment and therefore he could not appear before the lower court on the date of hearing of the suit. The plaintiff had filed objection to the applications disputing the correctness of the contentions raised by the defendant. 2. The defendant was examined as PW1 and Ext.A1 was marked during the hearing of the aforesaid applications. After considering the rival contentions of the parties and considering the evidence of PW1 and also Ext.A1 records relating to the treatment of the defendant, the lower court found that the averments in the affidavit filed along with the applications were not true and that the defendant was only making an attempt to protract the proceedings and therefore dismissed both the applications. This order is challenged in this appeal.

(3.) We have heard learned counsel appearing for the appellant and also the respondent.