JOHN PREMKUMAR Vs. NARAYANADASS

JUDGEMENT

(1.) THE petitioner is defendant in O.S.No.28 of 2005 on the file of the subordinate Court, Padmanabhapuram. The plaintiff has filed the suit for recovery of money. When the case was posted for trial on 6.9.2005, proof affidavit for chief -examination was filed on behalf of plaintiff and documents Exts.A.1 to 5 were marked. Since, the defendant was not present in the Court, P.W.1 could not be cross -examined and the case was adjourned to a subsequent date on 22.9.2005. Since the learned counsel for the defendant reported no instruction, he was set ex -parte and the Court passed a judgment on merits under impression that triable case is available for passing a judgment on merits.

(2.) THE petitioner filed an application to set aside the ex -parte decree dated 22.9.2005, along with an application to condone the delay of 530 days in filing such application in I.A.No.104 of 2007.

(3.) AFTER hearing both sides the learned subordinate Judge, Padmana -bhapuram, dismissed the application by observing that since his predecessor in office had pronounced the judgment on merits, the judgment and decree could not be presumed to be ex -parte proceedings and hence, the application to set aside the ex -parte decree and consequently the application under Section 5 of the Limitation Act are not maintainable.