- (1.)The Petitioner/Defendant/Appellant has projected the present Miscellaneous Petition under Or.41 R.3A of the Civil Procedure Code , praying for passing of an order by this Court to condone the delay of 18 days in filing the Appeal in A.S.SR.No.20590 of 2014 as against the Judgment and Decree dated 26.02.2010 in O.S.No.150 of 2005 passed by the Learned Additional District Judge/Fast Track Court-III, Coimbatore.
(2.)The Averments in Miscellaneous Petition (Filed by the Petitioner/Defendant/Appellant):
a) The entire suit was misconceived, devoid of merits and hinged upon two documents which were forged and fabricated by the Respondents/Plaintiffs to support their case. In fact, the forgery was demonstrated before the lower Court. As a matter of fact, the trial Court was misled by the said forged documents and passed a judgment in the suit in O.S.No.150 of 2005 on 26.02.2010, citing legally untenable and unacceptable reasons. Hence, the present Appeal is filed.

b) The Petitioner/Defendant had applied for certified copies of the judgment through the Learned counsel on 03.03.2010 itself, and the same was called for on 02.06.2010 and the necessary fee was deposited on 04.06.2010 itself but the copy was made ready only on 20.11.2013 and owing to the inordinate delay, the readiness was known only later and the copy was finally delivered on 07.02.2014. Immediately, after receiving the same, the Petitioner came to Chennai, approached the Learned counsel on record and instructed them to prefer an Appeal. The Learned counsels advised the Petitioner to bring certain vital papers to prefer the Appeal, since it took several days to make search and bring the same, there had occasioned the delay.

c) The Petitioner came to know that the Respondents/Plaintiffs had filed Executive Petition to execute the Decree passed in O.S.No.150 of 2005 dated 26.02.2010. In fact, the Judgment and Decree of the trial Court in O.S.No.150 of 2005 are erroneous and based on misconceived. Under these circumstances, the delay of 18 days in preferring the instant Appeal may be condoned.

(3.)The Gist of counter (Filed by the Respondents/Plaintiffs):
i) The Petitioner knowingly and wantonly suppressed very many material facts. As such, the Miscellaneous Petition suffers from the principle of 'suppressio veri suggesio falsi' and on this ground alone, the petition is to be dismissed in limine. Further, the Petitioner/Appellant had filed a copy application in C.A.No.514 of 2010, in which, the judgment and original decree were received by the Copy Section of the District Court, Coimbatore on 31.05.2010 and that copy papers were called for on 02.06.2010. As a matter of fact, the Petitioner/Appellant had deposited the necessary copy papers on 04.06.2010 and further that, the copy papers were made ready on 21.06.2010. Finally, the Petitioner/Appellant received the certified copy of the judgment and decree of the main suit on 21.06.2010 itself and this fact can very well be seen from the 'A Register' maintained by the Copy Section of the District Court, Coimbatore.

ii) Moreover, the preliminary decree for Rs.80,26,830/- was passed on 26.02.2010 and the typographical error in the said decree was modified to Rs.92,64,973/-. The Respondents/Plaintiffs had received the said certified copy of the 'Judgment and Decree' in the year 2010 itself and they had received the same under Xerox Copy Application No.2191 of 2010. Also, after passing of 'Preliminary Decree', the Respondents/Plaintiffs had received the copy of 'Judgment and Decree' dated 21.06.2010 under Copy Application No.601/2010 and 625/2010 and again received the copy of the Judgment and Preliminary Decree on 19.02.2013 under copy Application No.1087 of 2010. The Respondents/Plaintiffs received the copy of 'Final Decree' on 01.08.2012 in Copy Application No.1255 of 2012 for filing the same into Registrar's office and also to file the Execution Petition. Therefore, the 'Judgment and Decree' were available in the trial Court itself from the date of its Judgment till date. Added further, they had also received the certified copies of 'Depositions', 'Fair and Final Orders' in Interlocutory Applications in the Suit under various copy applications.

iii) The Respondents/Plaintiffs filed Execution Petition in E.P.No.21 of 2012 on 03.09.2012 in which the Petitioner/Appellant/Defendant had entered appearance and filed his counter statement. Later, several petitions were filed in the above Execution Petition and that the Petitioner/Appellant had also appeared and filed his counter statement in all the aforesaid proceedings. Finally, mortgaged property was sold in the Court auction held on 02.06.2014 and subsequently, the sale was also confirmed on 05.11.2014. In fact, (the Executing Court/Learned Additional District Judge No.V, Coimbatore) called upon them to pay the Sale Certificate Charges.

iv) The Petitioner/Appellant/Defendant on receiving the Judgment and Decree dated 21.06.2010 under Copy Application No.514 of 2010, had purposely and wantonly ignored to file the 'Appeal' in time. The limitation to prefer an 'Appeal' starts from 21.06.2010. But the Petitioner/Appellant/Defendant had failed to prefer the Appeal for the past five years and remained as a silent spectator. In the meanwhile, as per the 'Final Decree', the 'Mortgaged Property' was sold out and the sale was also confirmed and if the Petitioner/Appellant/Defendant is allowed to reopen the preliminary decree, it will certainly lead to so many complications and multiplicity of proceedings besides causing much hardships and loss of money to them.

v) The Petitioner/Appellant/Defendant had failed to explain in M.P.No.1 of 2015 the reasons for the long delay in filing the Appeal in question. Also, the Petitioner/Appellant nowhere had stated in para 5 of his affidavit in M.P.No.1 of 2015 about the vital papers sought for by his Learned counsel to prefer an 'Appeal' and what was the relevancy of those vital papers. As such, it was only a general and vague statement which is not legally valid one and the same could not be treated as proper and fair explanation. In fact, the Petitioner/Appellant had not only suppressed the real fact but very cleverly stated in the petition that there is only a delay of 18 days. However, the delay is more than five years and not property accounted for. As such, the same was not explained in an acceptable manner as required by Law.

The Contentions of the Petitioner/Appellant: