Vinod vs Sasidharan

Thomas P. Joseph, J.—Ext.P9, order on E.A. No. 301 of 2010 in E.P. No. 140 of 2005 in O.S. No. 441 of 2001 of the court of learned Principal Munsiff, Nedumangad is under challenge in this writ petition. Petitioner was served with notice under Rule 66 of Order XXI of the CPC (for short, "the Code") but, he did not respond according to him as he was laid up due to Jaundice at Chennai. He was set exparte on 23-02-2010 in the proceeding under Rule 66 of Order XXI of the Code. He appeared in court and filed Ext.P3, objection to execution petition and deposited certain amount as per Ext.P4. He filed Ext.P5, application to set aside the exparte order. That application was dismissed vide Ext.P9, order as that application was preferred beyond 30 days stipulated in Rule 106(3) of Order XXI of the Code and there is no provision to condone the delay in filing the application. It is contended by learned Counsel that property was sold in auction and to set aside the sale, petitioner has filed Ext.P11, application.

So far as Ext.P9, order is concerned, I do not find any illegality as the application to set aside exparte order was admittedly preferred beyond 30 days of the date of exparte order and there is no provision to condone the delay.

Learned Counsel stated that petitioner has in Ext.P11, application raised a ground among other things that property was sold for an amount not due to the respondent in that certain payments already paid were not given credit to. Petitioner requested that he may be permitted to urge that ground also in Ext.P11, application preferred to set aside the sale. I make it clear that all grounds which petitioner has urged in Ext.P11, application and as permitted under law could be urged in the request to set aside the sale.

With the above observation writ petition is dismissed.