KRISHNAMOORTHY Vs. DHEIVANEETHI

JUDGEMENT

(1.) THE order passed in I.A.No.2093 of 2007 in O.S.No.355 of 2003 on the file of the Principal District Munsif, Viruthachalam, is under challenge before this Court. THE revision petitioner, who is the defendant in O.S.No.355 of 2003, had filed the said application under Section 5 of the Limitation Act, 1963 to condone the delay of 970 days in preferring an application to set aside the exparte decree.

(2.) THE reasoning stated in the affidavit to the application in I.A.No.2093 of 2007 is that the defendant / revision petitioner herein was not residing in the address furnished in the plaint and that there was no service of summons in the suit to him and only from the notice received by him in the execution proceedings he came to know about the exparte decree passed against him in O.S.No.355 of 2003 on 08.12.2003 itself. THE entire case records from the trial Court were called for and perused. THE return summons in the suit in O.S.No.355 of 2003 will go to show that the summons have been served on the defendant on 16.10.2003 itself.

(3.) THE dictum in 2000(8) SCC 491 (Praveen Kumar and others Vs. Suresh Chand and others), relied on by the learned counsel for the revision petitioner, also is of no use to the revision petitioner because in the said case before the trial Court it was contended by the defendant therein that there was no proper service of summons in the suit. In support of the said contention, the petitioner therein had examined the process server to show that he had played fraud by making fake signatures of the appellant. THE trial Court relying upon the opinion of the handwriting expert held that the process was not duly served on the appellant. But on appeal, the High Court held that the findings of the learned Trial Judge is erroneous forgetting for a moment while exercising the revisional powers, the High Court has no jurisdiction to interfere with the findings on the facts recorded by the trial Court. THE relevant observation of the Honourable Apex Court in the said case runs as follows:-