Madras High Court
M/S. Vaam Industries vs National Insurance Company Ltd on 7 April, 2022
C.R.P(MD).No.482 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S. ANANTHI
CRP(MD).No. 482 of 2022
M/s. Vaam Industries,
rep. by its proprietrix
K.Reji .. Petitioner
Vs.
1. National Insurance Company Ltd.,
Nagercoil Branch,
rep. by its Branch Manager
2.National Insurance Company Ltd.,
Divisional Office,
Nagercoil,
rep. by its Divisional Manager. .. Respondents
Prayer: This Civil Revision Petition is filed under Section 115 CPC
against the order dated 26.11.2021 in E.A.No.4 of 2019 in E.P.No.51 of
2018 in Arbitration Case No.1 of 2015, on the file of the Principal District
Judge, Kanniyakumari.
1/5
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C.R.P(MD).No.482 of 2022
For Petitioner : Mr. M. Suresh
For respondent : Mr. S. Srinivasa Ragavan
ORDER
The revision petitioner / claimant filed this revision to set
aside the order, dated 26.11.2021 made in E.A.No.4 of 2019 in E.P.No.51
of 2018 in Arbitration Case No.1 of 2015, on the file of the Principal
District Judge, Kanniyakumari.
2. Heard the learned counsels appearing on either side and
perused the materials available on record.
3. The said E.P.No.51 of 2018 was filed by the petitioner to
pass an order of arrest against the respondent to realize the E.P amount of
Rs.19,85,407/-, which was dismissed for default on 16.03.2019. To restore
the E.P, the revision petitioner has filed E.A.No.4 of 2019 without delay
condonation petition, after a lapse of 30 days and the same was dismissed.
But, as per the Judgment of this Court, dated 29.07.2015 made in
CRP( NPD).(MD).No.184 of 2013 in the case of (Tmt. V. Prema and
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C.R.P(MD).No.482 of 2022
others Vs. Tmt. Nirmala Devi @ Thayar and another), Section 5 of the
Limitation Act is not applicable to the application filed for setting aside the
ex parte order under Rule 106 of Order 21 of Code of Civil Procedure.
The relevant portion of the said order reads as follows:
“9. The Supreme Court in N.Balakrishnan V. M.
Krishnamurthy (1998(7) SCC 123) observed that the
superior Court would be free to consider the cause
shown for the delay afresh and to come to its own
finding.
“9. It is axiomatic that condonation of
delay is matter of discretion of the Court, Section 5 of
the Limitation Act does not say that such discretion can
be exercised only if the delay is within a certain limit.
Length of delay is no matter, acceptability of the
explanation is the only criterion. Sometimes, delay of
the shortest range may be uncontainable due to want of
acceptable explanation whereas in certain other cases
delay of very long range can be condoned as the
explanation thereof is satisfactory. Once the court
accepts the explanation as sufficient it is the result of
positive exercise of direction and normally the superior
court should not disturb such finding, much less is
regional jurisdiction, unless the exercise of discretion
was on wholly untenable grounds or arbitrary or
perverse. But it is a different matter when the first
Court refuses to condone the delay. In such cases, the
Superior Court would be free to consider the cause
shown for the delay afresh and it is open to such
superior court to come to its own finding even
untrammeled by the conclusion of the lower Court.”
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C.R.P(MD).No.482 of 2022
4. So, the petitioner is directed to file a petition under Section
5 of the Limitation Act and the Executing Court is directed to decide the
matter on merits, after giving a sufficient opportunity to the petitioner.
5. With the above observation, the Civil Revision Petition is
disposed of. No costs.
07.04.2022
trp
Index :yes/No
Internet:yes/No
To
The Principal District Judge, Kanniyakumari.
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C.R.P(MD).No.482 of 2022
S. ANANTHI, J.,
trp
CRP(MD).No. 482 of 2022
07.04.2022
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