BALASUBRAMANI Vs. PRATHAP

JUDGEMENT

(1.) THE petitioner/defendant has filed this civil revision petition as against the order dated 16. 09. 2009 in I. A. No. 307 of 2009 in O. S. No. 643 of 2006 on the file of the Principal District Munsif Court, Erode in passing an additional order directing the petitioner to deposit half of the decree amount on or before 29. 09. 2009 etc.

(2.) THE trial Court while passing the order in I. A. No. 307 of 2009 dated 16. 09. 2009 has inter alia opined that 'the revision petitioner has filed the petition only in the month of November 2008 and there is no reason in the affidavit as to why such a delay has been caused for filing the petition to set aside the ex parte decree. It is to be also mentioned here that after decree the respondent filed an execution petition in order to realise the decree amount and the same is pending. Considering the submissions made on either sides, this Court finds that even though there is no record to prove that the petitioner was taking treatment, he must be given an opportunity to put forth his case and participate in the suit proceedings. However, to show his bonafide the petitioner also be directed to deposit some heavy costs with the Court and resultantly, directed the petitioner to deposit half of the decree amount on or before 29. 09. 2009, failing which it has ordered that the petition shall stand dismissed and the matter has been directed to be called on 30. 09. 2009.

(3.) THE learned counsel for the petitioner/defendant urges before this Court that the conditional order imposed by the trial Court in an application filed under Section 5 of the Limitation Act is contrary to law, and the trial Court has committed a manifest error on the facts and circumstances of the present case, and further, the trial Court ought to have allowed the application without imposing such an onerous condition that to deposit half of the decree amount which will cause great prejudice to the petitioner and the litigant should not be shut down from offering his defence by refusing to condone the delay in filing application to set aside the exparte decree even if the defendant has contributed to such delay and as a matter of fact the revision petitioner has stated that he has been suffering from illness due to which he has taken treatment at the out station which has prevented hi from filing the application in time and in any event the trial Court ought to have taken a lenient view and a liberal approach in allowing the application without any condition enabling the petitioner to project his defence and these aspects of the matter have not been adverted to, by the trial Court in a proper perspective and therefore, prays for allowing the civil revision petition in furtherance, of substantial cause of justice.