EAGIAMMAL Vs. SUBRAMANIAM

JUDGEMENT

(1.) THE question in this revision is whether the Court below acred right in allowing an application under section 5 of the Limitation Act and excusing the delay, a matter of 79 days or so. THE delay involved was in the filing of an application for setting aside an ex parte decree. THE defendants who applied for this relief were a husband and wife. THEir explanation for the delay was that the husband was ill with heart disease and also jaundice, and was taking treatment away from home Although the plaintiff opposed the application under section 5, there was not a word of effective denial in his counter affidavit either of the illness alleged or its treatment. All that was urged by the plaintiff was that the allegations of illness were -not proper" and were "unbelievable" as though he was reviewing those allegations and not traversing them. In the event the learned Judge disposed of the matter thus:

(2.) IN this revision the plaintiff-s learned counsel is not minded to find fault with the Court below for having accepted the factum of ill-health pleaded by the defendants. What learned counsel urges is that illness as such could not serve as sufficient cause.

(3.) THE plaintiffs learned counsel then said that of the two defendants who had committed the delay, the excuse offered could operate in favour of one alone and not the other. Learned counsel said it was the husband who was reported sick not the wife and that being so, the application under section 5 must have been dismissed as against the latter at least in any case.