G KRISHNAMURTHY Vs. ARULMIGHU

JUDGEMENT

(1.) The petitioner is defendant in O.S. No. 151 of 2002 on the file of the District Munsif Court, Cuddalore. The suit was decreed ex parte on 29.4.2003 because of the non-appearance and non-filing of the written statement of this petitioner. Hence, he filed an application under Order 9 Rule 13 C.P.C. along with application under Section 5 of the Limitation Act to condone the delay of 993 days in filing such application.

(2.) In the affidavit, he has stated that he engaged Mr. S. Sriramulu, Advocate to conduct the case, that he was then and there contacting his counsel and he was replied that the case did not come up for trial and he would inform when the case was posted in the list, that while he asked him in December 2005 also, he told as above, that not convinced with his reply, he asked another lawyer to check up the case bundle and to his surprise, he came to know that he was set ex parte on 24.9.2003 for non-filing of the written statement, that he has got good case in the suit and that since Mr. S. Sriramulu did not inform the date of hearing, the ex parte decree was passed and hence the delay has occurred and the same may be excused.

(3.) In the counter filed by the respondent, the allegations in the affidavit have been controverted. It is further stated that the petition is bereft of material particulars, that the petitioner has to explain each and every day delay, that the respondent has levied execution proceedings for delivery of the property in E.P. No. 432 of 2005 and the petitioner has been successfully evading the service of summons and that the petitioner's aim is only to protract the proceedings.