The court has discretion to condone delay in filing a petition to set aside an ex parte decree under Section 5 of the Limitation Act, 1963, considering the facts and circumstances of each case, including the petitioner's explanation for the delay and the interests of justice.

This revision is directed against order passed by the court below refusing to condone the delay of 730 days in filing the petition to set aside the ex parte decree passed against the petitioner.

2. The facts which are necessary for disposal of this revision can be stated as follows : The respondent herein filed a suit for recovery of money in respect of goods sold and delivered and the suit was decreed ex parte on 3-12-1984. Neither the revision petitioner nor his counsel appeared nor filed a written statement. According to the revision petitioner he had engaged one Kannathasan, Advocate and also signed the written statement and gave it to him and he was expecting communication from the advocate but no communication was received and he was under the impression that the suit was pending. But he came to know of the ex parte decree only on 21-11-1986 when he received the notice in the execution petition filed on the basis of the ex parte decree. According to him, it is only because of the trust he imposed on his counsel he could not fear and so he did not appear in the court and the ex parte decree was passed. As such the delay must be condoned.

3. Opposing the said petition the respondent decree holder contended that there is no reason for condoning the delay and the reason alleged is false and it is the duty of the petitioner to approach the counsel and to ascertain the stage of the suit. Further since there is no acceptable reason, the delay, ought not to have been condoned.

4. On the side of the petitioner he examined himself as PW 1 and Exs. P1 to P4 were marked and on the side of the respondent no evidence was adduced.

5. The learned trial Judge for the reasons assigned in his order dismissed the petition. Hence this revision.

6. The learned counsel for the petitioner Mr. Lakshmi Narain submitted that the petitioner should not be penalised for the fault of his counsel and further, even after the ex parte decree, the respondent/decree-holder wrote four letters which are marked as Exs. P1 to P4 and no mention is made about the passing of the ex parte decree and it is too much to expect him to examine his counsel as the revision petitioner himself had found fault with him for not informing him the stage of the case. On the other hand, the learned counsel for the respondent submitted that the mere fact that the respondent has not mentioned in the letters is not a ground for excusing the delay and it is for the petitioner to explain the delay and except his ipse dixit there is absolutely nothing to show that he gave a written statement to the counsel and the counsel failed to file it or inform him about the hearing date.

7. The learned counsel for the petitioner, Mr. Lakshmi Narain, drew my attention to the following decisions for the proposition that the Courts should be liberal in the matter of condoning the delay and further the party should not be penalised for the fault of his advocate and in any event an opportunity should be given to the petitioner to defend the suit;

1) R. Subbarayan v. Ravamani Ammal, (1988) 1 Mad LJ 294 : 1988 AIR(Mad) 228) where it was held as follows (at pp. 228-229) :

"It is well-settled principle of law that the judicial discretion vested with the Court in considering the question of delay however small or however large and" *

enormous it may be, rests in the Court's discretion and it is that discretion that matters at the end. However much evidence may be available explaining each day's delay it is one which may stand or may not stand judicial scrutiny. The background against which the question of delay has to be approached is whether opportunity has to be granted or not to the one who knocks at the doors of the temple of justice for adjudications of the matter that had already been decided ex parte and a conclusion has to be arrived at. This backdrop should always be available in the area of judicial scrutiny, with this background alone, a court has to approach the question whether the delay