IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 CRP.NO. 625 OF 2010() ---------------------------------- AGAINST THE ORDER DATED 20/10/2010 IN IA.3619/2010 IN OS.99/2005 OF II ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): RESPONDENT/DEFENDANT ----------------------------------------------------------------------------- STELLA JOY, W/OP. JOY, AGED ABOUT 44 YEARS, RESIDING AT CHAKKALACKAL HOUSE, ESSAY LANE, S.R.M ROAD, NEAR PACHALAM POST OFFICE, PACHALAM.P.O., KOCHI-12. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): PETITIONER/PLAINTIFF/2ND DEFENDANT ------------------------------------------------------------------------------------ 1. ANNT GONSALVAZ, W/O. NELSON GONSALVAZ, AGED 41 YEARS, PALLIPARMBIL VEEDU, PACHALAM.P.O., KOCHI-12. 2. JOY, S/O. MATHEW, AGED ABOUT 53 YEARS, RESIDING AT CHAKKALACKAL HOUSE, S.R.M ROAD, NEAR PACHALAM POST OFFICE, KOCHI-12. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. NO.625 of 2010 ==================================== Dated this the 24th day of November, 2010 O R D E R Defendant No.1 in O.S. No.99 of 2005 of the court of learned Additional Sub Judge-II, Ernakulam is the petitioner before me. Respondent No.1-plaintiff filed the suit against petitioner and respondent No.2 for recovery of `.2 lakhs and odd and interest thereon based on a dishonoured cheque. The suit was once dismissed for default and later it was restored to file. Then there was an ex parte decree against petitioner and respondent No.2. Ex parte decree was later set aside and then the suit was dismissed for default. Respondent No.1 under the impression that the ex parte decree remained in force filed execution petition against petitioner and respondent No.2. Respondent No.2 appeared in the executing court and took time to file counter. At a later point petitioner filed a petition on 26.10.2009 stating that there is no executable decree in force as the ex parte decree was set aside and the suit was later dismissed for default. Allowing that petition the execution petition was dismissed on 27.10.2009. Respondent No.1 filed I.A. No.3584 of 2010 for restoration of the C.R.P. No.625 of 2010 -: 2 :- suit dismissed for default and I.A. No.3619 of 2010 to condone the delay of 986 days in filing that application. Petitioner and respondent No.2 opposed the applications. Learned Sub Judge found that there was some foul-play on the part of petitioner in the matter of service of notice of I.A. No.6172 of 2006 to set aside the ex parte decree on respondent No.1, petitioner and respondent No.2 suppressed the fact of the ex parte decree being set aside for long period and thought that in the facts and circumstances the delay is to be condoned and dismissal of the suit set aside. Accordingly I.A. No.3619 and 3584 were allowed and the suit was restored to file. Those orders are under challenge in this petition. Learned counsel contends that there is no sufficient explanation for the delay of 986 days in filing the petition for restoration and at any rate the delay from 26.10.2009 to 24.05.2010 is not explained. 2. No doubt for condonation of delay under Section 5 of the Limitation Act the party concerned must show that he was prevented by sufficient cause from filing the application on time. Here application is filed with a delay of 986 days after the dismissal of the suit on 13.08.2007. I must bear in mind that suit is for recovery of `.2 lakhs and odd based on a dishonoured C.R.P. No.625 of 2010 -: 3 :- cheque. It is also not disputed that in relation to the dishonoured cheque there was a criminal complaint against petitioner and respondent No.2 which ended in conviction which was confirmed in appeal and revision as well. There is no reason to think in the circumstances having instituted a suit for `.2 lakhs and odd respondent No.1 would idle away her time or be negligent in the matter even after the suit was dismissed. According to respondent No.1 she was not served on I.A. No.6172 of 2006 (to set aside the ex parte decree). Even according to the petitioner there was no direct service of that application on respondent No.1. Instead alleged service was through paper publication. It is difficult to think that in spite of getting notice by paper publication respondent No.1 thought it not necessary to appear on I.A. No.6172 of 2006 and later, filed execution petition on the basis of the ex parte decree that was set aside. Learned Sub Judge has observed that respondent No.1 filed execution petition for execution of the ex parte decree dated 30.08.2006, petitioner filed an application in the executing court on 24.11.2007 but without disclosing that the ex parte decree sought to be executed was set aside and later the suit was dismissed. After the appearance of petitioner in the executing court, respondent No.1 C.R.P. No.625 of 2010 -: 4 :- took steps to serve notice on respondent No.2 by paper publication. If respondent No.1 was aware that the ex parte decree was set aside and the suit was later dismissed, respondent No.1 would not, in the normal course do all these things. Reasons does not persuade me to think so. Court below found that circumstances justified condonation of delay and accordingly allowed that application. Question is whether this Court is required to exercise the revisional power. 3. It is only when court below has passed a perverse order or exercised its jurisdiction illegally or refused to exercise the jurisdiction vested in it that revisional court is required to interfere and correct the mistake committed by the court below. Having regard to the facts and circumstances of the case I am inclined to think that court below has exercised the jurisdiction in the correct perspective and it does not require interference. Revision petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv