Casual manner of Court deprecated.

M.N. Chandurkar, C.J.

1. These two revision petitions are illustrations as to how far parties can go in making false affidavits for the purpose of having an ex parte decree, set aside. In a suit for money filed by the plaintiff, who is the respondent In C.R.P. No. 1099 of 1982, and is the respondent in C.R.P. No. 1484 of 1986, an ex parte decree was passed, on 12th July, 1978. The defendants in the suit were a partnership firm consisting of defendants 2 and 3, defendant No. 1 being the partnership firm.

2. On 25th April, 1961, an application for setting aside the ex parte decree was made accompanied by another application for condonation of delay under Section 5 of the Limitation Act. The bald averments made in the application for condonation of delay with which alone we are concerned, were that the suit was transferred from the file of the Second Assistant City Civil Judge, Madras, to file of the Sixth City Civil Judge, Madras, and that this fact was completely overlooked by the third defendant. It was also stated that there was a dispute between the second and the third defendants for the past four years prior to the date of the affidavit in the court at Coimbatore and consequently the suit in question could not be attended to.

3. The counter filed on behalf of the plaintiff shows the falsity of the allegation that the defendants were not aware of the transfer of the suit or the date on which it was taken up for trial. The plaintiff has stated that at the request of the defendants the suit was adjourned by the Court of the Sixth Assistant Judge, City Civil Court, Madras, on 4.11.1977, 10.12.1977, 23.1.1978 and 28.3.1978. Prior to these dates, the suit was already posted for trial in the Court of the Sixth Assistant Judge, City Civil Court, Madras, on 9.8.1977, where the defendants had appeared and it was adjourned at their request to 29.9.1977 when also they were not ready. The suit was adjourned on 12.7.1978 and on 23.3.1978, at the instance of the defendants. It is, therefore a wholly false statement that the defendants did not know of the date of hearing in the Court of the Sixth Assistant Judge, City Civil Court, Madras.

4. The learned Judge dealt with the application for condonation of delay. Having held on all counts in favour of the plaintiff, that the affidavit of the third defendant was not at all helpful and that the averments were invented 'to add colour of truth' to explain away the delay the learned Judge surprisingly went on to hold that the delay was neither wanton nor wilful and deserved to be condoned. The learned Judge, however, took the view that the application for condonation of delay could be allowed only on the third defendant depositing one third of the decretal amount as a condition precedent for allowing the application. He, therefore, directed the deposit of one third of the decretal amount to the credit of the suit and fixed 9.2.1982 as the date of hearing of the application for setting aside the ex parte decree. He also made a peremptory order that, if the amount was not deposited on or before 8.2.1982 both the applications of the defendants shall stand dismissed.

5. As already pointed out C.R.P. No. 1099 of 1982 is filed by the defendants challenging the order levying the condition to deposit one third of the decretal amount and C.R.P. No. 1384 of 1986 is filed by the original plaintiff challenging the order of the learned Judge condoning the delay.

6. It is obvious that the averments made in the affidavit filed by defendant No. 3 are patently false, having regard to the dates disclosed in the counter affidavit filed by the plaintiff. The statement made in the affidavit of the plaintiff that the suit was adjourned on several dates, at the request of the defendants has not been disputed by any further statement on affidavit. This circumstance was enough to reject the application for condonation of delay. Having appeared in the suit on several dates the burden was on the defendants to explain why t