The court must ascertain the bona fides of the explanation for delay in filing applications, and a lack of credible justification can lead to dismissal of such applications.

ORDER :

(R. VIJAYAKUMAR, J.)

The present civil revision petition has been filed by the defendant in O.S.No.998 of 2017 on the file of the Additional Subordinate Court, Karur challenging the dismissal of her application to condone the delay of 1264 days in filing an application to set aside the exparte decree.

2.The respondent herein has filed the above said suit for the relief of specific performance based upon a registered sale agreement dated 19.09.2016. An alternative prayer was sought for to refund of the advance amount with interest.

3.The defendant had remained exparte and an exparte decree came to be passed on 28.02.2018. On the strength of the exparte decree, the plaintiff had filed E.P.No.160 of 2018 for execution of sale deed. The sale deed was executed on 21.12.2020 and E.P. was closed on 19.07.2021.

4.The decree holder had filed E.A.No.1 of 2021 for delivery of the property on 30.07.2021. The decree holder had also filed E.A.No.1 of 2023 seeking Police Aid for taking possession. The said application was allowed on 13.06.2023. The decree holder has taken delivery through Court on 24.07.2023. The delivery was recorded by the Execution Court on 27.07.2023 and E.A.No.1 of 2021 was closed.

5.The defendant in the suit had filed I.A.No.1 of 2021 on 17.09.2021 to condone the delay of 1264 days in filing an application to set aside the exparte decree. Paragraph No.3 of the said affidavit is extracted as follows:

“3.The above case was posted on 31.01.2018 for appearance. On and from 15.01.2018, I was suffering from Jaundice and I was taking native treatment at Pudukkottai and various places. Hence, I was not able to meet my advocate and unable to instruct him to appear into Court on that day. During third weeks of March 2020, I have recovered from the Jaundice. On and from 24.03.2020, due to Covid 19 National lockdown was declared by our Government, hence I am not came out anywhere. Thereafter, I met my advocate and I came to know the exparte order passed against me on 31.01.2018 and as such the above case was decreed on 28.02.2018. Hence, this application is filed to condone the delay of days in filing set aside exparte decree.”

6.The decree holder had filed a counter contending that the judgment debtor has received the summon in the suit as well as notice in the execution proceedings. The certified copies of the summons and the notices that were served upon the defendant were enclosed along with a counter. The decree holder had contended that the reasons assigned in the condone delay application is not believable and he prayed for dismissal of the application.

7.The trial Court after considering the submissions on either side, has proceeded to dismiss the application on the ground that the defendant has not chosen to produce any document to establish the fact that she was taking native treatment for jaundice at Pudukkottai or at any other place and that too for a period of 1264 days. The trial Court has further found that the defendant has been served with summons in the suit and notice in the execution proceedings. Therefore, the defendant has voluntarily chosen to stay away from the suit proceedings.

8.Based upon the above said observations, the trial Court has dismissed the application to condone the delay. Challenging the same, the present civil revision petition has been filed by the judgment debtor through her power agent.

9.According to the revision petitioner, the defendant in the suit is a physically challenged person. Some relatives who were assisting the defendant have misguided her for signing the sale agreement. The defendant has signed the document only thinking it to be a mortgage deed. She has lost her husband and her son is residing away from her. In such circumstances, the Court should take a lenient view and a liberal approach in condoning the delay.

10.The learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported in AIR 1987 SC 1353 ( Collector, Land Acquisition, Anantnag