S D MUHAIAH GOWDER Vs. C MARIMUTHU

JUDGEMENT

(1.) THIS Civil Revision has been preferred challenging the order dated 19.1.2009 made in I.A No. 1258 of 2008 on O.S. No. 76 of 2004 on the file of the District Munsif Court, Sathyamangalam, Erode District.

(2.) THE Petitioner herein was the Defendant in the Suit in O.S. No. 76 of 2004, that was filed by the Respondent herein in year 2000 before Subordinate Court, Gobichettipalayam seeking a money decree, based on a promissory note dated 10.1.1997 executed for a sum of Rs. 25,000/-. It is seen that on 6.9.2001, the Suit was decreed ex parte as there was no representation for the Petitioner/Defendant and the Petitioner/Defendant was also called absent, though the case was posted for trail in the special list, subsequently, the Petitioner herein filed a Petition under Order 9, Rule 13 of Civil Procedure Code to set aside the ex parte decree. After hearing both sides, on 14.11.2003 the ex parte decree was set aside by the said Court and the case was again taken on file.

(3.) PER contra, the learned Counsel appearing for the Respondent submitted that there is no bonafide reason to condone the delay and allow the Petition filed under Section 5 of the Limitation Act. The learned Counsel for the Respondent also drew the attention of this court to the impugned order passed by the Court below wherein the Court has categorically stated that the impugned ex parte decree was passed on the third time and the Application had been filed casually by the Petitioner herein. Learned Counsel appearing for the Petitioner/Defendant has not disputed the fact that the Suit was originally pending before the Subordinate Court, Gobichettipalayam and ex parte decree was passed on 6.9.2001 and subsequently, the same was set aside on the Petition filed by the Petitioner under Order 9, Rule 13 of Civil Procedure Code and subsequently, the suit was transferred to the District Munsif Court, Gobichettipalayam and when the case was posted in the special list again the Petitioner remained absent and ex parte decree was passed. However, the Petitioner herein filed a Petition under Section 5 of the Limitation Act to condone the delay of 844 days in filing the Petition, to set aside the ex parte decree and that was also allowed on terms. However, again the Suit was decreed ex parte due to the non-appearing for the Respondent drew the Petitioner/Defendant, Learned Counsel appearing for the Respondent drew the attention for this Court to the copy of the Affidavit filed in support of the Application filed in I.A. No.1259 of 2008, wherein the Petitioner has stated that his wife was admitted in a hospital and due to financial difficulties, he could not contest the case. Hence, he could not appear on 3.10.2008. The aforesaid reason was not acceptable, since the Petitioner who had been absent and left the Suit for ex parte decree for about three times. As contended by the learned Counsel appearing for the Respondent, the first ex parte decree was passed in the year 2001, nearly ten years prior to this date.