R. SUBRAMANIAN Vs. CHELLAIYA

JUDGEMENT

(1.) By consent of both counsels the C.R.P. it -self is taken up for final disposal. The revision has been filed against the order dated 20.7.1995 in LA. No. 227 of 1995 in O.S. No. 212 of 1982 on the file of the District Munsif, Aranthangi. The petitioner herein filed the suit for declaration and mandatory injunction and the said suit was decreed ex parte on 9.4.1990. The respondent filed the said LA. No. 227 of 1995 under Sec. 5 of the Limitation Act to condone the delay of 1731 days in filing the application to set aside the ex parte decree. He has stated in the affidavit that he engaged one Mr. Kamesh as his Advocate. The said Mr. Kamesh left the profession and the respondent was left in dark about the proceedings. The respondent received notice in the execution proceedings and he met another counsel. Mr. Padmanabhan who informed him that he has been appointed as the Commissioner and hence he could not appear. Thereafter the petitioner engaged the present counsel and filed the petition and hence there is delay. The petitioner filed the counter stating that the petitioner filed E.P. No. 91 of 1991 to execute the ex parte decree and the notice was ordered to the respondent. Since the respondent refused to receive the notice he was set ex parte in the said execution proceeding (E.P.) also on 3.5.1991 and thereafter the execution petition was allowed. Now the lower court allowed the petition LA. No. 227 of 1995 filed by the respondent for condonation of delay. The main objection of the petitioner is that the total ignorance of the respondent about the proceedings till the receipt of notice in the second execution petition cannot be accepted in view of the statement made in his counter -affidavit. The objection has not been considered by the lower court. The lower court has simply accepted the averment made in the affidavit by the respondent and condoned the inordinate delay of 1731 days.

(2.) I carefully considered the objection raised by the petitioner. It is true that the petitioner has stated in the counter that he has filed E.P. No. 91 of 1991 and the notice was ordered to the respondent. The counsel for the petitioner produced the xerox copy of the certified copy of the E.P. No. 91 of 1991 wherein it is specifically stated as follows:

(3.) More over the respondent has stated in the affidavit that the counsel Mr. Kamesh left and on receipt of the notice in the E.P. he met another counsel Mr. Padmanabhan and who in turn informed him that he cannot appear and thereafter he has engaged the present counsel. The respondent nowhere has given the details with regard to the date of receipt of notice, the date of meeting the counsel Mr. Padmanabhan and the date of meeting the present counsel in order to consider whether there is any negligence on his part. In the absence of these materials it cannot be said that the respondent has acted bona fide for condoning the inordinate delay of 1731 days. The lower court merely Considered the reason given by the respondent and found it is an acceptable one. I am unable to agree with the view taken by the lower court. I find that the respondent has totally failed to give any satisfactory explanation for the delay of 1731 days or at least after the date of the ex parte order in E.P. No. 91 of 1991. Hence the order of the lower court is set aside. The C.R.P. is allowed. Consequently the C.M.P. No. 1145 of 1995 is also allowed.