ANBALAGAN Vs. PERIASAMY

JUDGEMENT

(1.) THOUGH the matter was posted for settlement, since the appellant had agreed to pay a sum of Rs. 40,000 to the 2nd respondent in full quit of the decree obtained by the said respondent against the father of the appellant, today the respondents' counsel reports mat his clients are not willing for the terms. It is admitted that the execution petition was filed for a sum of Rs. 78,000 in 1984. When the principal amount is rs. 2,80,000 after giving due credit to the payments made by the father of the appellant, the arrears being Rs. 78,000 the respondent herein filed the execution petition. After the court' s suggestion, the appellant herein had deposited a sum of Rs,40,000 in full quit of the claim. But, however, the counsel for the respondents represented that the second respondent is not agreeable for any settlement, since the execution is levied for the balance of Rs. 78,000 as on 1984. Before ever the disposal of the E. P. , the appellant herein has filed the suit O. S. No. 585 of 1988 on the file of the sub-Court, Trichy for partition. The said suit has been dismissed for default on 9. 3. 1993.

(2.) THE appellant has filed the suit O. S. No. 584 of 1972 for partition of his share. THE suit has been filed against the father, the first respondent herein and the second respondent was also made a party. On 9. 3. 1993, the suit was dismissed for default. On 29. 3. 1993 the appellant filed an application I. A. No. 273 of 1993 for restoration of the suit on the ground that though on 9. 3. 1993 the appellant came to court, the bus suffered a break down and he could not reach the court till the afternoon and when he reached the court after lunch, he came to know through the counsel that the suit had been dismissed for default. THEreafter, he filed an application for setting aside the order of dismissal. However, the lower court not satisfied with the explanation given by the appellant, had dismissed the application I. A. No. 273 of 1993 by order dated 9. 3. 1994. As against this order, the present appeal has been filed.

(3.) A perusal of the order of the lower court clearly reveals that the court below was carried away by the contradictions between the statement of the appellant in the affidavit and in the evidence. In paragraph 6 of the order, the court below was clearly stated that on 9. 3. 1993. When the case was listed for trial, neither the appellant nor his counsel was present and the case was dismissed for default at 4. 30 p. m. Hence, the evidence of the appellant that he reached the court by 2. 30 p. m. and from the counsel he came to know that the suit was dismissed for defult before ever he reached the court cannot be accepted. Further the lower court has stated that the appellant has given different reasons for the delay in reaching the court. But, however, the different reasons has not been discussed by the court below. The court below further proceeded on the basis that when the appellant was present on 9. 3. 1993 itself before the court, after the case was disposed of, he ought to have filed an application for the restoration of the suit on the very same day, without making any delay in filing the application. On this ground, the court below has dismissed the application.