LAL SINGH Vs. CHANDRESH

JUDGEMENT

(1.) The petitioner has preferred the present writ petition, calling in question, the order dated 17.5.2016 passed by the District Judge, Udaipur (hereinafter referred to as "the trial Court") whereby petitioner's application under Order XXXVII Rule 4 of the Code of Civil Procedure, for setting the decree has been rejected.

(2.) Shorn of unwarranted details, the needful facts in a nut-shell are that the plaintiff-respondent instituted a suit for recovery of a sum of Rs.2,00,000/- under Order XXXVII Rule 1 & 2 of the Code of Civil Procedure against the petitioner, inter alia, contending that the defendant having taken a cash loan of Rs.2,00,000/- had tendered a cheque No.964191 dated 28.2.2011 in plaintiff's favour, for a sum of Rs.2,00,000/- against its payment. The said cheque in turn was returned unpaid by the drawee bank for insufficiency of funds, which constrained him to file the aforesaid suit. The said suit instituted on 4.3.2014, came to be decreed by the learned trial Court vide its judgment dated 21.1.2015 and a decree for a sum of Rs.2,93,333/- of even date came to be drawn.

(3.) Faced with the aforesaid decree, the petitioner-defendant filed an application on 19.02.2015 under Order XXXVII Rule 4 of the Code of Civil Procedure inter alia indicating that two days prior to the date of hearing viz. 21.1.2015, the applicant caught cold and fever, which continued for a long period for which, he could not contact his counsel to apply for leave to defend. The aforesaid application dated 19.2.2015 was accompanied with an application under Section 5 of the Limitation Act, which came to be rejected by the learned trial Court, vide its order dated 17.05.2016.