SHANMUGAM Vs. CHOKKALINGAM

JUDGEMENT

(1.) THIS Revision has been directed against the order passed by the lower Court in dismissing the application seeking for condonation of delay of 332 days in filing the application to set aside the exparte decree passed in O. S. No. 35 of 2006.

(2.) THE revision petitioner is the defendant in the suit. The respondent herein, as plaintiff, had filed the suit in O. S. No. 35 of 2006 before the lower Court on the basis of the promissory note executed by the respondent herein/defendant. Since the petitioner/defendant did not appear before the lower Court on 5. 6. 2006, he was set exparte and an exparte decree was passed on 12. 06. 2006 against the petitioner/defendant. There was a delay of 332 days caused in filing the petition to set aside the exparte decree of the lower Court. Hence, the petitioner/defendant filed I. A. No. 1824 of 2007 seeking for condonation of delay of 332 days in filing an application to set aside the exparte decree. The lower court has, after hearing both sides, dismissed the said Interlocutory application, which necessitated the petitioner to file this Revision.

(3.) THE brief facts in the application filed by the petitioner for condonation of delay would runs as follows:- The petitioner herein/defendant is working in a bank. The respondent herein/plaintiff filed the suit in O. S. No. 35 of 2006 on the basis of the promissory note executed by the respondent herein/defendant. The said suit was posted on 5. 6. 2006 for the appearance of the defendant/petitioner herein. Since the defendant/petitioner herein did not appear before the Court, he was set exparte and an exparte decree was passed against the defendant/petitioner herein on 12. 06. 2006 by the lower Court. The petitioner/defendant would contend that he had applied for leave on the said date to his higher authority and since the leave was not granted to him, he could not be present before the Court. He did not know about the passing of exparte decree and he kept quiet ignorantly. The petitioner/defendant could not subsequently meet his counsel and inform about his absence on that date. Thereafter, he approached his counsel and he could be aware of the passing of the exparte decree only when the execution proceedings were launched against him and the notice was served upon him and immediately, he has filed the application to set aside the exparte decree and in the meanwhile, a delay of 332 days caused in filing the application to set aside the exparte decree and since it was not wilful and wanton the said delay of 332 days may be condoned.