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Komarasami Chetti Vs. Sundar Mudaliar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.724
AppellantKomarasami Chetti
RespondentSundar Mudaliar and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 9(2) - abatement, application to set aside--delay--sufficient cause--appellate court, interference. - .....for execution of the decree on the 2nd november 1921. the district judge held that there was no executable decree. thereupon the appellant filed the present application out of which this appeal arises. his contention is that he was mistaken as regards the nature of the decree and he thought it was an executable decree and that was why he did not make the application before november 1921, for setting aside the abatement. he attained majority on the 4th june 1921.2. from 4th june 1921 to 2nd november 1921 it does not appear that he consulted any vakil and he was misled by reason of the advice given by the vakil. it is suggested on behalf of the respondent that, inasmuch as the time for setting aside the abatement had long passed, the appellant, wanted to try and induce the court to hold.....
Judgment:

1. The only question in this appeal is whether the delay in presenting the application to the lower Court for setting aside the abatement should be excused or not. The appellant is the adopted son of the decree holder who died on the 30th January 191s). The decree was passed on the 12th November 1918. The appellant applied for execution of the decree on the 2nd November 1921. The District Judge held that there was no executable decree. Thereupon the appellant filed the present application out of which this appeal arises. His contention is that he was mistaken as regards the nature of the decree and he thought it was an executable decree and that was why he did not make the application before November 1921, for setting aside the abatement. He attained majority on the 4th June 1921.

2. From 4th June 1921 to 2nd November 1921 it does not appear that he consulted any Vakil and he was misled by reason of the advice given by the Vakil. It is suggested on behalf of the respondent that, inasmuch as the time for setting aside the abatement had long passed, the appellant, wanted to try and induce the Court to hold that the decree was an executable one and when he found the Court would not uphold his contention, he filed this application. There may be some truth in this suggestion but we are not satisfied that the appellant has satisfactorily explained the delay of five months in presenting this application. The lower Court on a consideration of the circumstances has refused to excuse the delay in the case. We are not prepared to differ from the finding of the lower Court that the appellant has not sufficiently explained the delay. We, therefore, dismiss the appeal with costs.


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