Court should not consider merits of the case while considering petition for condoning the delay.

1. Plaintiff in O.S.No.437 of 1994 on the file of the I Additional Subordinate Judges Court, Coimbatore, is the revision petitioner. The petitioner is aggrieved by the order of the lower court in I.A.No.947 of 1998 filed by the respondent herein.

2. Petitioner filed a suit for recovery of an amount of Rs.4,62,337.50 with interest at 18% p.a. from the date of suit till the date of payment and also for the costs of the suit. The defendant/respondent herein is a nationalised bank. Even though the respondent entered appearance in the suit, did not file written statement and finally ex parte decree was passed on 14.10.1996. By the time the decree was passed, the amount swelled to nearly Rs.7,40,000 apart from the costs of the suit. The petitioner herein filed an execution application on the basis of the ex parte decree. The Bank received notice in E.P. in January, 1998 and on their failure to make any representation, an order of attachment was ordered on 24.3.1998. The Amin visited the petitioners bank and informed them about the attachment of the movables ordered by the court. When the attachment could not be effected, the petitioner herein moved for police aid. But, it is seen that the attachment was not effected since the petitioner made a part payment on 24.4.1998 and the matter was adjourned to 17.6.1998. On that day also, the Bank made another payment and the case was posted on 10.7.1998 for payment of the balance amount as a last chance. On 13.7.1998 also, the Bank was allowed to make a part payment of Rs.10,000. The executing court directed the Bank to pay at least 1/3rd of the balance amount within a month. It is seen, even thereafter the payment could not be made and the properties were attached. It is at that time an application was filed by the respondent herein in I.A.No.947 of 1998 along with a petition under O.9, Rule 13 of the Code of Civil Procedure to set aside the ex parte decree. I.A.No.947 of 1998 was filed to condone the delay in filing the application to setting aside the ex parte decree. There is a delay of 744 days.

3. In I.A.No.947 of 1998, the Bank contended that they were under the bona fide impression that the written statement was filed and the suit was yet to come up for trial. They also further averred that they did not receive any information from their counsel and they came to know about the ex parte decree only when the Amin visited the bank premises for effecting attachment. For the said petition, the petitioner filed a detailed counter and wanted the application to be dismissed.

4. By the impugned order, the lower court allowed the same on terms i.e., asking the bank to deposit the entire costs of the suit in court and also Rs.1,000 to be paid the counsel. The court below also directed that in case the amount is not paid, the application will stand dismissed.

5. It is not disputed that the Bank has complied with the directions and the delay has been condoned.

6. Learned counsel for the petitioner submitted that the impugned order passed by the lower court is perverse and it has not taken into consideration the settled legal principles in condoning the delay. It is further argued that the lower court has not entered a finding as to whether there was sufficient cause for condoning the delay. According to the counsel the only finding by the trial court is that since it is a nationalised bank and since public money is involved some lenience will have to be shown and it should not be treated just like the case of a private individual. The lower court has also said that in the case of public institutions, there will be some laches and that by itself cannot be reason to discard the case. According to the counsel, the above reasons are only grounds for condoning the delay.

7. As against the said contention, learned counsel for the respondent submitted that discretion exercised by the lower court and the same should not be looking to be interferred under Sec.115 of the Code of Civil Procedure