EDWIN ALEX Vs. SYNDICATE BANK KARINGAL BRANCH

JUDGEMENT

(1.) THE above Civil Revision Petition has been filed against the fair and decretal order dated 2. 11. 1995 made in E. A. No. 78 of 1993 in E. P. No. 28 of 1987 in O. S. No. 78 of 1976 by the Court of Subordinate judge, Nagercoil, thereby allowing an application filed by the respondent under section 5 of the Limitation Act praying to condone the delay of 265 days caused in filing the petition to restore the Execution Petition dismissed for default.

(2.) A glance at the affidavit filed in support of the petition reveals that on behalf of the petitioner before the Execution Court, the Syndicate Bank, Karingal Branch, represented by its Branch Manager, it would be contended that the above Execution Petition was posted for arguments after many hearings and on 21. 4. 1992, when it was called, there was no representation on behalf of the petitioner and hence the said Execution petition was dismissed for default, about which the petitioner came to know only on 6. 1. 1993 through the Advocate's Clerk and as such a delay of 265 days in filing the petition to restore the said Execution Petition has become inevitable; that on account of family problems, their Advocate was not able to attend to the Court in the last six months prior to filing the petition and that the delay was neither wilful nor wanton but in the circumstances stated above and would pray for condoning the same.

(3.) THE upper forums of law have often and again held that delay could occur but only unexplained delay would leave room for the petition to be dismissed. Moreover, even in such event, when the delay is quite long, the petitioner cannot be punished with denial of further opportunity to prosecute the main case in which event, the petitioner's entire rights regarding the suit properties would become jeopardized. Hence, proper course to adopt under such circumstances is not to punish the petitioner with the dismissal and denial of opportunity to carry on with the enquiry or trial of the main proceedings but to burden him with costs. Here, though the delay has been caused to the extent of 265 days, the lower Court has arrived at the right conclusion in sofar as allowing the delay excuse petition. But still, the lower court has not thought it fit to allow appropriate costs. Since the other side for a long time had been kept in dilemma and to compensate such inconvenience or hardship, necessarily the Court below should have allowed substantial costs. Hence, while justifying the conclusions arrived at by the lower Court in condoning the delay of 265 days caused by the respondent herein in filing the petition for restoration of the Execution Petition, which was dismissed for default, the Lower Court should have allowed petition on substantial costs, which would have more fittingly served the ends of justice. Hence, it is decided to impose a cost of Rs. 1, 000 on the respondent herein.