The petitioner/defendant has filed the Civil Revision petition as against the order dated 15.07.2009 made in I.A.No.808 of 2008 in O.S.No.231 of 2003 on the file of the District Munsif court, Thiruvottiyur in dismissing the application filed under Section 5 of the Limitation Act praying to condone the delay of 730 days in filing the application to set aside the Ex parte Decree.
2. To avoid an avoidable delay, and to prevent an aberration of justice, this Court dispenses issuance of notice to the respondent/plaintiff.
3. The trial Court, while passing order in I.A.No.808 of 2008 in O.S.No.231 of 2005, has clearly opined in paragraph 5 of its order to the effect that the Revision petitioner/Defendant has come to know about the passing of the Ex Parte Decree dated 28.02.2006 on 15.03.2007 itself and resultantly, there has been delay of more than 11 months in projecting Section 5 application and that the petitioner has not come to court with clean hands and resultantly, dismissed the application without costs.
4. It is to be noted that the Revision petitioner/Defendant in his affidavit in I.A.No.808 of 2008 has specifically averred in paragraph 5 of the affidavit that he has come to know of the Ex parte Decree only in the year 2008 and then he has contacted his advocate, who in turn, has informed him that the Ex Parte decree has been passed against him on 28.02.2006. etc.
5. In the counter filed by the respondent/plaintiff, it is among other things, averred that the petitioner has entered appearance in the suit and he has remained exparte and an Ex pare Decree has been passed as early as on 28.02.2006 and subsequently, E.P.No.8 of 2007 has been filed on 16.11.2006 and on 15.03.2007, the Revision petitioner/Defendant has filed vakalat and entered appearance and has taken time to file counter and therefore, he cannot plead ignorance of the Ex Parte Decree dated 28.02.2006, more so, when he has entered appearance in E.P.No. 8 of 2007 on 15.03.2007 itself and therefore, the reason mentioned by the Revision petitioner is not correct and the same is devoid of merits and therefore, has prayed for dismissal of the application.
6. On a careful scrutiny of the order passed by the trial court in I.A.No.808 of 2008 in O.S.No.231 of 2005 dated 15.07.2009, this Court is of the considered view that a clear and categorical finding has been rendered by the trial Court to the effect that the Revision petitioner/Defendant has come to know about the Ex parte Decree dated 28.02.2006, on 15.03.2007 itself and in regard to the said finding, this Court does not find any serious infirmity or patent illegality in the eye of law and consequently the Civil Revision petition fails.
7. In the result, the civil Revision petition is dismissed without costs. The order of the trial Court passed in I.A.No.808 of 2008 in O.S.No.231 of 2005 by the District Munsif, Thiruvottiyur, is affirmed.
pal To I Additional Sub court, Coimbatore