Diligence and satisfying reasons are crucial in seeking delay condonation in execution proceedings.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 of the Civil Procedure Code to set aside the judgment and order dated 26.02.2016 E.A.No.5576 of 2015 in E.P.No.583 of 2015 in O.S.No.9416 of 2006 on the file of the learned IX Assistant City Civil Judge, Chennai.)

This Civil Revision petition has been filed challenging the order passed by the executing Court, whereunder the petitioner was directed to deposit the claim amount on or before 28.03.2016. The said application has been filed to condone the delay of 35 days in setting aside the ex-parte order dated 03.06.2015 in E.P.No.583 of 2015.

2. The facts leading to the present revision is as follows:- 2.1 The 1st defendant herein had filed a suit against the 2nd respondent and three others for a recovery of a sum of Rs.32,000/- (Rupees Thirty Two Thousand only) together with interest at the rate of 1.30% per month which was quantified on Rs.23,750/- (Rupees Twenty Three Thousand Seven Hundred and Fifty Only) in which the judgment and decree was passed in O.S.No.9416 of 2006 on 30.03.2007. Pursuant to the said decree, the 1st respondent/ decree holder filed an execution petition in E.P.No.583 of 2015, wherein, it was has also mentioned that the decree has to be executed against the petitioner and has stated that in I.A.No.22213 of 2016 a garnishee order has been passed which had been made absolute on 28.09.2012 in which the amount was directed to be deposited in Court by the garnishee. A notice of the above execution petition was served upon the petitioner on 26.05.2015 for hearing on 03.06.2015 on which date there was no representation on the side of the petitioner and hence, an ex-parte order was passed. Seeking to set aside the ex-parte order, the petitioner had filed an application along with an application to condone the delay. In the application to set aside the ex-parte order, the averments is as follows:

I submit that Court summons was served on the petitioner on 26.05.2015. The petitioner immediately contacted their counsel at Chennai and appraised about the matter. On verifying the Court records we were informed by out counsel at Chennai that the next date of hearing was on 03.06.2015. The duly signed vakalath could be despatched only on 04.06.2015 as the Authorised signatory was not in town at that point of time. Since the vakalath reached our counsel at Chennai on the evening of 03.06.2015, the same could not be filed into Court on the said date and as such the petitioner was set ex-parte.”

2.2 However, in an application to condone the delay, the reasons assigned is as follows:-

I submit that the vakalath and affidavit to set aside the order dated 03.06.2015 sent by the petitioner was mixed up with some other papers and could not be traced out. Hence, a fresh vakalath and affidavit was forwarded to the petitioner for signature and notarization. The signed papers reached us only during the first week of August, 2015 and the same was filed on 06.08.2015. Hence there is a delay of 35 days in filing the set aside petition in the above E.P.No.583 of 2015.”

2.3 The said application was vehemently opposed by the 1st respondent on the following grounds:-

(a) The petitioner having received notice and had known the date of hearing, ought to have filed the vakalath on or before 03.06.2015.

(b) If the case of the petitioner is taken as submitted, their advocate could have entered appearance and under took to file the vakalath.

(c) An application in I.A.No.22213 of 2006 adding the petitioner as garnishee was filed and in the same there has been an order directing the garnishee to deposit the amount has been made under Order 38 Rule 5 of C.P.C., which was also made absolute by order dated 28.09.2012.

3. It was further argued that the garnishee/ petitioner has not been diligent in approaching the Court and hence, sought dismissal of the application to condone the