Case: M.K. Prasad Vs. P. Arumugam

The suit land was agricultural land comprised in Paimash No. 199, measuringCawny, Paimash No. 200, measuringCawny, Paimash No. 201, measuringCawny, Paimash No. 273, measuringCawny, Paimash No. 281, measuringCawny, Paimash No. 286 measuringCawny, Paimash No. (sic)Cawny, measuring in allCawny situate in No. 141 Kottivakkam village, Sidapet Taluk, Chingleput District bearing Patta No. 32. 3. In the aforesaid suit the appellant was defendant No. 9. On his service, he appeared through his counsel in the trial Court. 4. On the basis of the pleadings before it, the trial Court framed the following issues : "1. Whether the plaintiffs mother Chokkammal, the life estate holder under the regd. will dated 30.6.32 had any right to deal with the properties covered under the said will ? 2. Are the alienations made by life estate holder would bind the plaintiff ? 3. Is not the plaintiff entitled to question the alienation effected by the life estate holder would who had no right to effect any alienation ? 4. Are the alienees bona fide purchaser ? 5. To what relief the parties are entitled ? 5. As the counsel for the appellant did not appear after 17.9.1993, and the other defendants did not contest the claim of the respondent, the trial Court decreed the suitvide its unreasoned judgment dated 5th March, 1996. It was contended by the appellant that the person who was appearing on behalf of the company left the service since 1994 because of death of his son and none has informed him about further proceedings in the Court. Unaware of the passing of the decree against him, the appellant could not take any proceeding in the form of an appeal or for setting it aside. He came to know about the passing of the decree in 1997 only when he received the notice for execution proceedings initiated by the respondent in Execution Petition No. 118 of 1997. The appellant thereafter filed an application for setting aside thedecree along with an application for condoning the delay. The trial Court rejected the prayer of the appellant for condoning the delay of 554 days in filing the application for setting asidedecree. Aggrieved by the order of the trial Court, the appellant filed a revision petition in the High Court which was dismissed vide the order impugned in the present appeal.

Reasoning:
6. In any case in which a decree is passedthe defendant can apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit. Such an application can be filed within 30 days as provided under Article 123 of the Limitation Act. In case of delay, the defendant can avail of the benefit of Section 5 of the Limitation Act and seek its condonation by satisfying the court regarding the existence of circumstances which prevented him from approaching the court within the limitation prescribed by the statute.In the instant case, the appellant tried to explain the delay in filing the application for setting aside thedecree as is evident from his application filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside thedecree, the court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting asidedecree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside thedecree as well.