MADHAVI Vs. S SUNDARAM

JUDGEMENT

(1.) This memorandum of civil revision is directed against the fair and Decretal order dated 29.6.2007, and made in I.A. No. 23 of 2007 in A.S.CFR. No. 1205 of 2007, on the file of the learned District Judge, Nilgiris, which was filed against the judgment and decree dated 10.12.2004 and made in O.S. No. 87 of 2003, on the file of the learned Sub-ordinate Judge, at Ooty. On perusal of the records it reveals that the respondent herein had filed a suit in O.S. No. 87 of 2003, against the revision petitioner seeking the relief of specific performance. Despite the contest made by the revision petitioner, the suit was decreed in favour of the respondent on 10.12.2004. Challenging the judgment and decree the revision petitioner being the defendant had filed an appeal on A.S.CFR. No. 1205 of 2007 on the file of the learned District Judge, Ooty. However, there is a delay of 816 days in preferring the appeal. Therefore, along with the memorandum of appeal, the revision petitioner had filed an application under Section 5 of Limitation Act to condone the delay of 816 days. After hearing both sides that application was dismissed on 29.6.2007. Being aggrieved with this, the revision petitioner has knocked at the doors of this Court with the present memorandum of civil revision.

(2.) When the revision came up for hearing, the learned counsel appearing for the revision petitioner has submitted that immediately, after passing of judgment, the revision petitioner had entered into a compromise with the respondent/plaintiff and the respondent had also assured that he would not take further steps to dispossess the property based on the judgment and decree. Only on the assurance given by the respondent/plaintiff, the revision petitioner/defendant had not preferred any appeal. In the meantime, the respondent had taken out the execution proceedings and managed to get an ex parte order. It was also not informed to the petitioner about this fact, by the learned counsel appearing in Court below. When he was informed about the ex parte order passed in execution proceedings, he had applied for the certified copies and was able to receive the certified copy only on 11.4.2007 and therefore, the delay of 816 days was not willful or wanton and unless and until the delay is condoned the revision petitioner would be put into irreparable loss and hardship.

(3.) On the other hand, the learned counsel for the respondent has argued that after full fledged trial the trial Court had passed the judgment and decree on 10.12.2004 and that as adverted to, by the learned counsel for the revision petitioner no compromise was effected between the revision petitioner and the respondent and that on the strength of the judgment and decree, the respondent/plaintiff had initiated the execution proceedings and even after the service of notice, the revision petitioner did not choose to make his presence to answer the claim and therefore, the Court of first instance was constrained to pass an ex parte order in the execution proceedings. Now the petition filed by the revision petitioner under Section 5 of the Limitation Act is nothing but a dilatory tactic to protract and to postpone the delivery of the property on the strength of the judgment and decree made in the suit. The learned counsel for the respondent/plaintiff has also vehemently objected to allow this revision. This Court has perused the judgment dated 10.12.2004. The judgment was pronounced on appreciation of the evidences both oral and documentary. It is apparent from the records that the appeal was not preferred within the prescribed period and the revision petitioner/defendant also had not shown sufficient cause to condone the delay of 816 days and therefore, this Court is of view that the impugned order does not suffer with any infirmities despite it is a non speaking order.