RAMAIAH Vs. W D JOACQUIEN

JUDGEMENT

(1.) The civil revision petitioner herein is the applicant in E.A.No.166 of 2009, judgment debtor in E.P.No.77 of 2007 and defendant in O.S.No.686 of 1970, on the file of the District Munsif Court, Poonamallee, Thiruvallur District.

(2.) The civil revision petitioner has filed an execution application No.166 of 2009 praying to set aside the ex-parte order of removal of obstruction, dated 30.04.2009, under Order No.41, Rule 5 of the Civil Procedure Code. In the said application, the revision petitioner has inter-alia stated that for non filing of counter statement in E.P.No.77 of 2007, was said ex-parte on 30.04.2009. This fact known to the revision petitioner on 01.06.2007, since the matter was reversed to the Lok Adalat for amicable settlement.

(3.) The counter statement filed by the respondent/plaintiff states that the revision petitioner's counsel sought time before the E.P.Court for filing his counter statement. Hence, the Court has granted sufficient time on several occasions. But, he did not file the counter statement. The respondent further stated that the suit was initiated in the year 1970, after contest the decree was confirmed by the Courts and executed the said decree. The execution order passed on 30.04.2009, but the set aside application was filed on 02.06.2009, but the application has to be filed on 01.06.2009, for one day's delay. In the absence of the condone delay petition the set aside application has been filed and as such, the petition is not maintainable. Further, the respondent has stated in his counter that it is not an exparte order, but only a contested decree and only that decree had been executed, that too also only after a period of 40 years. Hence, the respondent has prayed for dismissal of the petition in E.A.No.166 of 2009 in E.P.No.77 of 2007.