BIMAL DEB Vs. ASHOK DEY

JUDGEMENT

(1.) This is a revision under Section 115 C.P.C. directed against the order dated 20.6.99 passed by the learned Civil Judge, Senior Division, at Agartala in Misc. (Res) Case No. 18/99 dismissing the defendant-petitioners' application under Section 5 of the Limitation Act, 1963 to condone the delay in filing the petition under Order 9 Rule 13 C.P.C. for setting aside the exparte decree dated 24.2.1998 passed in T.S. No. 28 of 1990.

(2.) I have heard Mr D.R. Choudhury, learned Counsel for the defendant-petitioners as well as Mr D.B. Sengupta, learned counsel for the plaintiff-respondent. I have also considered the records of the case.

(3.) The defendant-petitioners Nos. 1 and 2 are brothers. The defendant-petitioner No. 3 is wife of the defendant-petitioner No.2. In the application for condonation of delay filed before the learned Civil Judge, it is stated that the defendant-petitioner No. 1 being an illiterate person and the defendant-petitioner No.3 being a woman and a house wife, the defendant- petitioner No.2 alone used to look after the case. He had become seriously ill since 5.3.97, had been bed-ridden for long and was still under treatment. His son Samir also had been suffering from serious heart trouble since January, 1997. He had to go to Calcutta and got his ailing son admitted in B.M. Birola Heart . Centre. One of his heart valves was found damaged and he was under treatment till March, 1998. Besides heart ailment, his son was still suffering from respiratory trouble. The defendant-petitioner No.2, himself seriously ill, had to stay in Calcutta for long along with his wife, the defendant-petitioner No.3, for treatment of their son. Under the circumstances, he could not look after the case and could meet his advocate Mr D.R. Choudhury only on 20.7.98 and came to know from him that in the meantime the case was decreed ex-parte against them on 24.2.1998 and the limitation period of thirty days from that date to file a petition under Order 9 Rule 13 C.P.C. for setting aside the ex-parte decree was already over. His advocate took time from 21.7.98 to 215.7.98 to collect necessary information/papers/copies etc. and then prepared the petition for setting side the ex- parte decree as well as the application for condonation of delay, got the same typed and filed in the Court of the Civil Judge on 28.7.1998. In the application for condonation of delay, the defendant-petitioners asserted that the delay was not for any laches and negligence on their part and that if the delay was not condoned, they would suffer irreparable injury. The doctor's prescriptions and medical certificates in support of illness have been annexed to this application and the averments made therein are supported by an affidavit sworn by the defendant-petitioner No.2.