R GONDASAMY GOUNDER Vs. R NARAYANASAMY CHETTIAR

JUDGEMENT

(1.) THIS revision has been preferred against the order passed in I. A. No. 469 of 2002 in O. S. No. 465 of 1998 on the file of the Court of Principal District Munsif, Gingee. The said application was filed under Section 5 of the Limitation Act to condone the delay of 1339 days in preferring an application to set aside the exparte decree. A reading of the order passed in I. A. No. 269 of 2002 in O. S. No. 465 of 1998 will go to show that even on two previous occasions the revision petitioner herein/defendant had left the suit for passing exparte decree, viz. 19. 7. 1995, 31. 10. 1996 and lastly on 17. 2. 1999. It is further seen from the same order that notice in execution proceedings was served on 14. 8. 2001 and only thereafter the revision petitioner has filed I. A. No. 469 of 2002 on 2. 5. 2002.

(2.) THE learned counsel for the respondent referring to the ratio decidendi in 2007 (3) LW 146 (Selvaraj and another Vs. Ramachandran and others), would contend that if the petitioner has failed in to explain each and every day's delay, he is not entitled to any relief the petition under Section 5 of the Limitation Act. Even in the above said ratio following the dictum in 100 LW 707 = 1987 (1) MLJ 32 (Arukkani Ammal Vs. Guruswamy) and another dictum in 1996 (1) LW 432 = 1996 (1) CTC 717 (Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust, Etc. , Vs. R. M. Sevaga Chettiar), it has been held that an exparte decree cannot be set aside on the vague allegation of illness. Generally delays in preferring petition to set aside the exparte decree are liable to be allowed if sufficient reason for the delay is shown in the affidavit to the petition. According to the learned counsel for the petitioner, at the relevant point of time the petitioner was admitted in Vijaya hospital and also subsequently at Valajabath for taking treatment for paralitic attack and jaundice. But a perusal of the evidence of P. W. 2 would go to show that the revision petitioner was lying in stuper for the past three years. Apart from the oral evidence of P. W. 2 there was no material placed before the trial Court to show that the revision petitioner was bed ridden for nearly three years immediately before filing of I. A. No. 469 of 2002. Whenever an exparte decree was passed in the years 1996 and 1999, he filed petitions and got exparte decree set aside. Thereafter the revision petitioner was lethargic and had shown callous indifference in proceeding with the trial. Under such circumstances I am of the view that on the vague allegation of illness, the exparte order cannot be set aside for the third time in this case as rightly held by the Court below. I do not find any reason to interfere with the well considered order of the Court below in I. A. No. 469 of 2002 in O. S. No. 465 of 1998, which is neither illegal nor infirm to warrant any interference from this Court.

(3.) IN fine, the civil revision petition is dismissed confirming the findings of the learned Principal District Munsif, Gingee, in I. A. No. 469 of 2002 in O. S. No. 465 of 1998. No costs. Connected Miscellaneous Petitions are closed.