The provision of Section 5 of the Limitation Act should be applied liberally to advance substantial justice, but inaction and negligence, even after receiving notice in the execution proceedings, may amount to willful negligence and render the delay uncondonable.

This Revision has been directed against the order passed by the lower Court in dismissing the application seeking for condonation of delay of 332 days in filing the application to set aside the exparte decree passed in O.S.No.35 of 2006.

2. The revision petitioner is the defendant in the suit. The respondent herein, as plaintiff, had filed the suit in O.S.No.35 of 2006 before the lower Court on the basis of the promissory note executed by the respondent herein/defendant. Since the petitioner/defendant did not appear before the lower Court on 5.6.2006, he was set exparte and an exparte decree was passed on 12.06.2006 against the petitioner/defendant. There was a delay of 332 days caused in filing the petition to set aside the exparte decree of the lower Court. Hence, the petitioner/defendant filed I.A.No.1824 of 2007 seeking for condonation of delay of 332 days in filing an application to set aside the exparte decree. The lower Court has, after hearing both sides, dismissed the said Interlocutory Application, which necessitated the petitioner to file this Revision.

3. The brief facts in the application filed by the petitioner for condonation of delay would runs as follows:

The petitioner herein/defendant is working in a Bank. The respondent herein/plaintiff filed the suit in O.S.No.35 of 2006 on the basis of the promissory note executed by the respondent herein/defendant. The said suit was posted on 5.6.2006 for the appearance of the defendant/petitioner herein. Since the defendant/petitioner herein did not appear before the Court, he was set exparte and an exparte decree was passed against the defendant/petitioner herein on 12.06.2006 by the lower Court. The petitioner/defendant would contend that he had applied for leave on the said date to his higher authority and since the leave was not granted to him, he could not be present before the Court. He did not know about the passing of exparte decree and he kept quiet ignorantly. The petitioner/defendant could not subsequently meet his counsel and inform about his absence on that date. Thereafter, he approached his counsel and he could be aware of the passing of the exparte decree only when the execution proceedings were launched against him and the notice was served upon him and immediately, he has filed the application to set aside the exparte decree and in the meanwhile, a delay of 332 days caused in filing the application to set aside the exparte decree and since it was not wilful and wanton the said delay of 332 days may be condoned.

4. The brief contentions of the plaintiff/respondent herein in his counter in the said application would run as follows:

The petitioner herein/defendant is working in a Bank. The suit in O.S.No.35 of 2006 was filed by the respondent herein/plaintiff against the petitioner herein/defendant on the basis of the promissory note executed by the petitioner herein/defendant in favour of the plaintiff. The petitioner herein knows about the suit proceedings. The said suit was decreed exparte in favour of the respondent herein/plaintiff on 12.06.2008. The respondent herein/plaintiff has initiated execution proceedings in EP.No.456 of 2006. The petitioner herein/plaintiff was served notice in the said EP. The said EP was posted on 19.4.2007 for filing objections of the petitioner herein/defendant. On the filing of the objections of the petitioner herein/defendant, the said EP was posted on 21.6.2007 for the appearance of the petitioner/defendant. In his objections, the petitioner/defendant did not give any particulars about the filing of an application to set aside the exparte decree. After participating in the execution proceedings, the petitioner herein/defendant filed I.A.No.1824 of 2007 seeking to condonation of delay in filing an application to set aside exparte decree. Therefore, it cannot be said the petitioner/defendant did not know about the exparte decree passed in the suit. Therefore, the application has to be dismissed.

5. The trial