The order passed in I.A.No.1349 of 2003 in O.S.No.477 of 2001 on the file of the Court of Principal Subordinate Judge, Erode, is under challenge in this revision.
2.The impugned order was passed in an application filed under Section 5 of the Limitation Act to condone the delay of 318 days in filing a petition under Order 9 Rule 13 of CPC. The learned trial Judge after taking into consideration the averments in the affidavit to the application and also the counter statement, finding no reason to condone the delay of 319 days, has dismissed the application, which necessitated the petitioner to approach this Court by way of this revision.
3.The learned counsel for the revision petitioner relying on 2003(3) MLJ 369 (K.Thirumurthy and another Vs. Muthammal and others), 2003(3) MLJ 709 (A.P.Ramasamy Vs. Dhanalakshmi) and 2005(3) MLJ 607 [Tarachand (deceased) and others Vs. Kathija] would contend that if the petitioner shows sufficient cause for his delay then it is to be condoned and an opportunity must be given to the petitioner to defend his case.
4.A perusal of the affidavit to the I.A.No.1349 of 2003 in O.S.No.477 of 2001 would go to show that the petitioner was attacked with jaundice on 21.11.2002 and the petitioner would further state that due to his illness he could not meet his counsel to give necessary instructions to him to file written statement. The affidavit is silent with regard to the fact as to when he actually recovered from his illness. He would admit that only through the notice received by him in EP.No.200 of 2003 in O.S.No.477 of 2001 he came to know about the passing of the exparte decree in the suit on 28.11.200s itself.
5.Per contra, the learned counsel for the respondent would state that in pursuance of the decree passed in O.S.No.477 of 2001 he had filed EP.No.200 of 2003 before the Execution Court and has executed the decree. Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge in I.A.No.1349 of 2003 in O.S.No.477 of 2001.
6.In fine, the Revision lacks merit and the same is hereby dismissed confirming the order passed in I.A.No.1349 of 2003 in O.S.No.477 of 2001 on the file of the Court of Principal Subordinate Judge, Erode. Connected Miscellaneous Petition is also dismissed. No costs.
26.03.2009 Index :Yes/No Web :Yes/No ssv To, The Principal District Judge, Erode.
A.C.ARUMUGAPERUMAL ADITYAN, J.
ssv C.R.P.(NPD).No.249 of 2008 and M.P.No. 1 of 2008 26.03.2009