LINET JAQUILIN Vs. LINA MARTIN

JUDGEMENT

(1.) Plaintiff in O.S.710/2003 is aggrieved by two separate orders passed by the Additional Munsiff Court-I, Kozhikode on 03/08/2016, setting aside the ex-parte decree passed by that court on 23/01/2004 after condoning delay of 4470 days. Plaintiff had instituted the said suit for realization of money against sole defendant.

(2.) Being aggrieved by the ex-parte decree defendant filed I.A.No.1991/2016 invoking Order IX Rule 13 of CPC for setting aside the same. Since there was delay of 4470 days, he filed I.A.No.1990/2016 for condoning the delay invoking Section 5 of the Indian Limitation Act, 1963. In execution of the decree, half right of the defendant, respondent was purchased by the petitioner herein, through court auction. In other words, the ex-parte decree sought to be set aside is one whose satisfaction was already recorded by the court in the execution proceeding.

(3.) In the lower court, the petitioner, plaintiff filed objection to both I.As. No oral evidence was adduced by the parties. After perusing Exts.A1 to A3 produced on the side of the respondent, defendant and hearing both parties, the court below found that there was no proper service of summons on the defendant and further during this period of time, the defendant was laid up without being able to appear and conduct the suit. In order to prove that he was undergoing treatment for mental illness in hospitals during this period, medical records which were marked as Exts.A1 to A3 were also produced.