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2011 Supreme(Mad) 2922
2011 (3) MWN(Civil) 41
High Court of Judicature at Madras
R. BANUMATHI & V. PERIYA KARUPPIAH
S.N. Viswam & Another
Versus
S. Suresh
O.S.A.No.177 of 2011
Decided on : 23-06-2011
For the Appellants:Mr. K.J. Parthasarathy, Advocates.
For the Respondent:Mr. V. Manohar, Advocates.
The main legal point established in the judgment is the need for 'sufficient cause' to condone the delay in filing an application under Sec.5 of the Limitation Act. The court emphasized the liberal construction of 'sufficient cause' to advance substantial justice and highlighted the importance of giving parties an opportunity to contest the suit.
Headnote:
Limitation Act - Delay Condonation - Sec.5 of Limitation Act - Sec.69-A of Transfer of Property Act - [Sec.5 of Limitation Act, Sec.69-A of Transfer of Property Act] - The court discussed the application filed under Sec.5 of Limitation Act to condone the delay of 315 days in filing the application to set aside the exparte decree. The court emphasized the need for 'sufficient cause' to condone the delay and cited legal principles from previous judgments. The court found that the address discrepancy and the health issues of the appellants constituted 'sufficient cause' for the delay. The court also highlighted the importance of advancing substantial justice and giving the appellants an opportunity to contest the suit C.S.No.447 of 2008. The court set aside the order of the learned Judge and allowed the application for condonation of delay, directing the trial court to consider the application to set aside the exparte decree in light of the observations made.
Fact of the Case:
The appellants, owners of a property, borrowed a loan and defaulted on repayment. The property was sold in a public auction, and the appellants filed a suit seeking to declare the auction sale as illegal and to set aside the sale deed. Meanwhile, the respondent filed a suit to obtain possession of the property. The appellants were set exparte, and they filed an application to set aside the exparte decree along with an application to condone the delay of 315 days.
Finding of the Court:
The court found that the appellants had 'sufficient cause' for the delay in filing the application to set aside the exparte decree, considering the address discrepancy and the health issues of the appellants. The court emphasized the need to advance substantial justice and give the appellants an opportunity to contest the suit C.S.No.447 of 2008. The court set aside the order of the learned Judge and allowed the application for condonation of delay.
Issues: The main issue was whether the delay of 315 days in filing the application to set aside the exparte decree could be condoned under Sec.5 of the Limitation Act.
Ratio Decidendi: The court emphasized the need for 'sufficient cause' to condone the delay and cited legal principles from previous judgments. The court found that the address discrepancy and the health issues of the appellants constituted 'sufficient cause' for the delay. The court also highlighted the importance of advancing substantial justice and giving the appellants an opportunity to contest the suit C.S.No.447 of 2008.
Final Decision: The court set aside the order of the learned Judge and allowed the application for condonation of delay, directing the trial court to consider the application to set aside the exparte decree in light of the observations made.
R. Banumathi, J.
This appeal arises out of the order dated 02.12.2010 in A.No.5359 of 2010 in C.S.No.447 of 2008 whereby the learned Judge dismissed the application filed under Sec.5 of Limitation Act and declining to condone the delay of 315 days in filing the application to set aside the exparte decree. Defendants are the Appellants herein.
2. Brief facts are that Appellants are the owner of the land and building in Plot No.1, Door No.10, 1st Main Road, Jai Nagar, Arumbakkam, Chennai-600 106 measuring 2397 sq. ft. consisting of Ground Floor, First Floor and Second Floor.
3. On 11.10.1994, Appellants borrowed a loan of Rs.6,00,000/- from Muthialpet Benefit Fund Limited under mortgage and created a registered mortgage in respect of the above said property infavour of Muthialpet Benefit Fund Limited by a deed of mortagage on 11.10.1994 under Doc.No.2798 of 1994. Appellants did not adhere to the repayment schedule and committed default in paying the loan. In exercise of powers under Sec.69- A of Transfer of Property Act, the property was sold in public auction on 24.1.2008. In the said public auction, Respondent-S.Suresh became the highest bidder and sale deed dated 06.2.2008 was executed infavour of Respondent under Doc.No.376 of 2008 on the file of Sub Registrar Office, Anna Nagar, Chennai.
4. Alleging that the property is worth about Rs.1.75 crore; but the property has been sold for a paltry sum of Rs.17,10,000/-, Appellants have filed C.S.No.487 of 2008 seeking for:- (i) declaration that the alleged auction sale held on 24.1.2008 in respect of the suit property is illegal, invalid and void ab-initio and non-est in the eye of law and to set aside the sale deed dated 06.2.2008; (ii) permanent injunction restraining the Respondent from in any way alienating or encumbering the suit property; (iii) permanent injunction restraining Muthialpet Benefit Fund Limited from in manner interfering with the right and entitlement of Appellants from enjoying the suit property. The suit C.S.No.487 of 2008 is said to be pending.
5. In the mean while, on the basis of the sale deed dated 06.2.2008, Respondent herein had also filed C.S.No.447 of 2008 praying:- (i) to direct the Appellants to hand over vacant possession of the suit property; (ii) to pay damages at the rate of Rs.40,000/- per month from the date of plaint till the date of delivery of the suit property for illegal occupation and other reliefs.
6. In C.S.No.447 of 2008, Appellants were set exparte on 18.6.2009. Exparte evidence was taken on 23.6.2009 and C.S.No.447 of 2008 was decreed exparte on 17.9.2009. To execute the exparte decree, Respondent had also filed Execution Petition in E.P.No.3760 of 2010. In the said Execution Petition, notice was sent to the Appellants returnable by 19.8.2010 and Appellants were served with notice.
7. Thereafter on 26.8.2010, Appellants have filed application praying to set aside the exparte decree. That application was filed along with application in A.No.5359 of 2010 under Sec.5 of Limitation Act to condone the delay of 315 days. In the said application, the 2nd Appellant averred that her husband/1st Appellant was suffering from health problem for the last two years and has been continuously under medical treatment and also under continuous medical monitoring. In particular, he was suffering from Angina Dectoris which affected his brain and due to the same he was on several occasion admitted in the hospital. 2nd Appellant further averred that only due to 1st Appellant's health problem, they could not immediately file application to set aside the exparte decree. Stating that the suit filed by them in C.S.No.487 of 2008 is pending, Appellants averred that if the delay is not condoned and exparte decree is not set aside, they would be subjected to serious prejudice. On those averments, Appellants prayed to condone the delay of 315 days in filing the application to set aside the exparte decree.
8. Resisting the application, Respondent filed coun
