IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2008 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.1740 of 2008 and M.P.No.1 of 2008 Karuppusamy .. Petitioner Vs. Shanmuga Sundaram .. Respondent Civil Revision Petition filed against the fair and decreetal order, dated 10.01.2008 made in I.A.No.1014 of 2007 in O.S.No.43 of 2005 on the file of District Munsif Court, Kangeyam. For petitioner : Mr.N.S.Sivakumar For respondent : Mr.N.Manokaran O R D E R
This Civil Revision Petition has been preferred against the order, dated 10.01.2008 made in I.A.No.1014 of 2007 in O.S.No.43 of 2005 on the file of the court of District Munsif, Kangeyam.
2. It is seen that the aforesaid Interlocutory Application was filed by the revision petitioner / defendant under Section 5 of Limitation Act to condone the delay of 222 days in filing the petition to set aside the exparte decree, dated 27.10.2006.
3. According to the learned counsel appearing for the revision petitioner, the petitioner had been suffering from viral fever, hence, he could not file the petition in time to set aside the exparte decree.
4. According to the learned counsel appearing for the respondent / decree holder, the reason assigned by the revision petitioner is not true and genuine and that it is seen that there is no supporting document to establish the genuineness of the illness alleged by the revision petitioner before the trial court. Further, according to the learned counsel, the case was posted for cross-examination of P.W.1 on 11.10.2006, 14.10.2006 and 18.10.2006, however, there was no representation for the revision petitioner / defendant, hence, the defendant was set exparte and exparte decree was passed. Pursuant to the exparte decree, the respondent / plaintiff filed Execution Petition before the Executing Court and the revision petitioner / judgment-debtor had appeared through counsel on 08.02.2007. However, he filed this petition under Section 5 of Limitation Act only on 05.07.2007. Therefore, there is no bonafide reason available on the side of the petitioner for allowing the petition filed under Section 5 of the Limitation Act.
5. From the records available on record and the arguments advanced by both the learned counsel, I am of the view that there is no error on the part of the Court below in dismissing the petition, since the petitioner has not satisfactorily explained the delay of 222 days in filing the petition to set aside the exparte decree. It is not in dispute that on 08.02.2007, the petitioner appeared before he Executing Court though counsel, however, he had chosen to file the petition under Section 5 of Limitation Act, only on 05.07.2007. However, in the interest of justice, I am of the view to pass a conditional order, directing the revision petitioner / judgment-debtor to deposit 50% of the decree amount with proportionate interest and costs within a reasonable time, so as to dispose the suit on merits within a time frame fixed by this Court, for which, there is no objection from the learned counsel appearing for the respondent / decree-holder, and accordingly, the conditional order is being passed.
6. In the aforesaid circumstances, to meet the ends of justice, I find it reasonable to direct the revision petitioner / defendant to deposit 50% of the decree amount with proportionate interest and costs before the court below, on or before 01.09.2008, without prejudice to the claim of both the parties, failing which the petition shall stand dismissed automatically and the respondent / decree holder will be at liberty to proceed with the E.P. If the order is complied with, the trial court is directed to set aside the exparte decree and restore the suit and dispose the same, according to law on merits, within a period of six months thereafter.
8. With the above direction, this Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
tsvn
To
The District Munsif
Kangeyam