@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashHeard both the learned Counsel appearing for the Petitioner as well as the Respondent.
2. This Civil Revision Petition has been filed, challenging the order and decretal order, dated 22.08.2008 made in I..A. No. 77 of 2006 in O.S. No. 200 of 2000 on the file of the Sub-Judge, Ariyalur.
3. It is seen that the suit in O.S. No. 200 of 2000 was filed by the Respondent herein against the revision Petitioner, seeking specific relief of a contract, based on an agreement, dated 16.08.1999 and an exparte decree was passed by the Court below on 18.12.2002. Pursuant to the exparte decree, the Respondent herein filed Execution Petition in E.P. No. 73 of 2003 before the Court below.
4. According to the learned Counsel appearing for the Respondent/decree-holder, after service of notice, the Petitioner/judgment-debtor appeared before the Executing Court, through a counsel on 27.02.2004, then the E.P was adjourned till 17.02.2006 for filing counter. Subsequently, pursuant to the orders passed by the Court below, sale deed was also executed and registered on 06.05.2005 and the E.P was also closed on 10.06.2005. Though the Petitioner had knowledge about the Execution Proceedings in E.P. No. 73 of 2003 and appeared through counsel on 27.02.2004, he had not chosen to file any application under Order IX Rule 13 CPC to set aside the exparte decree, hence, there is no bonafide reason for filing the petition at the belated stage, seeking an order to set aside the exparte decree along with a petition to condone the delay of 963 days.
5. In the affidavit filed before the Court below, the Petitioner/judgment debtor has stated that he was suffering from jaundice, hence, he could not appear before the Court below for 963 days and file a petition to set aside the exparte decree. If that reason is bonafide, it could not have been possible for the Petitioner to engage a counsel and appear in the Execution Proceedings on 27.02.2004, without filing an application to set aside the exparte decree, the Petitioner has simply stated that he was suffering from jaundice for 963 days, without any supporting materials.
6. Learned Counsel for the Respondent relying on the following decisions submitted that the Petitioner has not satisfactorily explained the delay to condone the same:
1. C. Raghupathy v. V. Govindan 2009 (1) CTC 319
2. Shanmugam v. Chokkalingam 2009 (5) CTC 48
3. Ranganatha Iyengar v. Thangarasu 2008 (5) CTC 628
4. Sinnamani, M v. G. Rajashankar 2005 (2) CTC 126
5. Kandaswamy v. Krishnamandiram Trust, Karur 2001 (4) CTC
6. Srinivasalu, E v. Krishnammal 100 Law Weekly 686
7. This Court in Shanmugam v. Chokkalingam, reported in 2009 (5) CTC 48 relying on various decisions of the Hon''ble Apex Court has held that the petition filed therein, seeking an order to set aside the exparte decree along with the petition to condone the delay of 332 days was not on bonafide intention, since the Petitioner/judgment-debtor had appeared in the Execution Proceeding, prior to the filing of the Interlocutory Application under Order IX Rule 13 CPC, seeking an order to set aside the exparte decree. Since the petition was filed long after the appearance of the Petitioner in the E.P, it was held that the Petitioner was guilty of laches and negligence and there was no sufficient cause made out to condone the delay.
8. In C. Raghupathy v. C. Govindan, reported in 2009 (1) CTC 319, it was decided by this Court that blaming the previous counsel could not be a reason and that would not be a sufficient cause to condone the delay of 943 days in filing a petition to set aside an exparte decree.
9. In Ranganatha Iyengar v. Thangarasu, reported in 2008 (5) CTC 628, this Court has held that the delay of 532 days in filing a petition to condone the delay in preferring an application, seeking to set aside the exparte decree was not bonafide, on the ground that there was exparte decree passed twice and after passing the final decree and without seeking an order to set aside the preliminary decree, the Petitioner therein had challenged only the final decree, passed by the Court below. Hence, the petition filed u/s 5 of Limitation Act, to condone the delay, on the ground of jaundice for nearly 1 1/2 years was dismissed. As the reason given by the Petitioner was not convincing, merely by raising allegation against the lower Court counsel, held that the bonafide was not established by the Petitioner, according to law. Relying on various decisions, this Court dismissed the petition that there was no bonafide reason and that the reason assigned by the Petitioner therein would be an abuse of process of the law and the Court.
10. In Sinnamani, M v. G. Rajashankar, reported in 2005 (2) CTC 126, as the Petitioners/Defendants therein had admitted the knowledge of the decree in June 2003, however, failed to file a petition, seeking an order to set aside the exparte decree immediately, hence, this Court held that there was no bonafide reason to condone the delay relying on various decisions.
11. In Kandaswamy v. Krishnamandiram Trust, Karur, reported in 2001 (4) CTC 722, this Court held that the petition filed, seeking an order to condone the delay of 797 days in setting aside the exparte decree filed, on the ground that the Petitioner therein had no knowledge about the exparte decree, was negatived, as he had knowledge long prior to the filing of the petition, as per the materials available on record. Keeping quiet over two years and filing a petition subsequently, with a petition to condone the delay and seeking an order to set aside the exparte decree was viewed lack of bonafide, accordingly, the same was dismissed by this Court.
12. In Srinivasalu, E v. Krishnammal, reported in 100 Law Weekly 686, this Court held that there was no bonafide reason for condoning the delay, as per Section 5 of Limitation Act, on the ground that the delay was not satisfactorily explained by the Petitioner therein.
13. This Court, relying on the decisions of the Hon''ble Apex Court and the earlier decisions of this Court, has categorically held that for allowing the petition filed u/s 5 of the Limitation Act, it is the duty of the Petitioner to establish the bonafide reason for the delay caused, otherwise the petition would not be allowed.
14. In the instant case, as per the records available, it is seen that the exparte decree was passed on 18.12.2002. Pursuant to the exparte decree, the Respondent herein filed Execution Petition in E.P. No. 73 of 2003. It was not in dispute that notice was served to the Petitioner/judgment-debtor and he appeared through counsel on 27.02.2004 in the Execution Petition and the matter was adjourned finally to 17.12.2004, that was specifically stated by the Respondent herein in the counter filed in I.A. No. 77 of 2006 before the Court below, which is not in dispute. Subsequently, though the matter was posted for filing counter, counter was not filed. Pursuant to the orders passed by the Executing Court, sale deed was also executed and registered on 06.05.2005.
15. Learned Counsel appearing for the Respondent produced an order for taking delivery of possession and accordingly, the Respondent was handed over the possession of the property through Court of law. According to the learned Counsel for the Respondent, pursuant to the order, after recording delivery of possession of the property, the Court below has also recorded that the E.P was terminated, hence, the revision is not legally sustainable.
16. Admittedly, there was no stay against the decree passed by the trial court, orders were passed by the Executing Court, pursuant to the decree in the Execution Petition filed by the Respondent herein. When there was no stay, there could be no error on the part of the Executing Court in proceeding further and passing appropriate orders in the E.P and admittedly, the Petitioner/judgment-debtor appeared before the Executing Court through counsel.
17. While deciding a petition filed u/s 5 of Limitation Act, to condone the delay, the Court has to consider three important aspects:
(i) Whether the delay has been satisfactorily explained by the Petitioner, who seeks an order to condone the delay.
(ii) When the delay is inordinate and not satisfactorily explained, the Court should also consider whether the order of dismissal would lead to failure of substantial justice on the available materials on record.
(iii) Whether allowing the petition would cause more relative legal hardship to the other side and affect the accrued right of the Respondent/decree-holder.
18. In the instant case, it is not in dispute that the Petitioner has not satisfactorily explained the delay that he was suffering from jaundice for 963 days. Though the Petitioner appeared through counsel before the Executing Court, he failed to file a petition to set aside the exparte decree before the trial court, for the reasons best known to the Petitioner. The Petitioner has not established anything, based on material that if the revision is not allowed, there would be failure of substantial justice. Pursuant to the decree, E.P was filed by the Respondent/decree-holder. After service of notice to the Petitioner, he appeared before the Executing Court through a counsel, however, did not defend the case properly, hence, sale deed was executed, after considering the draft sale deed. The possession of the property was also handed over, as per procedure known to law and the E.P was also terminated. In the aforesaid circumstances, it would not be fair on the part of the Court to allow the petition to condone the inordinate delay, as it would not meet the ends of justice.
19. Learned Counsel appearing for the Petitioner has also not pointed out any material irregularity or legal prejudice that would affect substantial justice. It is seen from the documents produced by way of typed set by the learned Counsel appearing for the Respondent that sale deed was executed in favour of the Respondent, according to law and delivery of possession was also ordered and subsequently, the property was also handed over to the Respondent/decree-holder, as per procedure known to law. The revision Petitioner, having knowledge about the decree and the Execution Petition and other subsequent orders, has filed this revision, without pointing out any illegality or material irregularity in the impugned order.
20. On the aforesaid facts and circumstances, in the light of various decisions rendered by Hon''ble Apex Court and this Court, I am of the view that there is no bonafide reason available to show that there was sufficient cause to condone the delay caused by the Petitioner/judgment-debtor. In the absence of sufficient reason to condone the inordinate delay, this Court is of the view that S.Tamilvanan, J tsvn the revision petition is liable to be dismissed as no merits, as the impugned order has been passed, according to law.
21. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.
