ORDER
Raju, J.
1. The above revision has been filed against the order of the learned Subordinate Judge, Kumbakonam, dated 31.3.1994 in C.M.A. No. 12 of 1993 confirming the order dated 17.11.1992 passed by the learned District Munsif, Valangaiman at Kumbakonam in I.A. No. 168 of 1992 in O.S. No. 139 of 1995. The defendant in O.S. No. 139 of 1995 is the applicant and appellant before the courts below as also the petitioner herein.
2. The suit has been filed by the respondent plaintiff claiming the relief of redemption of mortgage and delivery of possession of the suit property. The fact that the redemption sought for is that of an usufructuary mortgage said to have been executed by the plaintiff in favour of the defendant on 15.10.1975, is not seriously disputed. But, what is claimed by the defendant in his written statement filed is that though the document was executed as a mortgage, the plaintiff really agreed to sell the property. In addition to the said claim, a panchayat and further agreement of sale said to have been executed by the plaintiff on 14.1.1994 in favour of the defendant agreeing to sell the property, are also relied upon. Of course, even in the written statement, it is stated that the defendant reserves his right to seek remedy on the basis of the agreement of sale. The order of the learned District Munsif disclose that the suit which was filed on 10.6.1985 was listed for trial on 28.3.1988 and on account of lapse and non-appearance of the defendant, the suit came to be decreed ex parte. Thereupon, the defendant appears to have filed I.A. No. 959 of 1988 and the ex parte decree was set aside. Once again on 12.9.1989, for the lapse and default on the part of the defendant, an ex parte decree came to be passed in the suit. Again at the instance of the defendant in I.A. No. 878 of 1990, the ex parte decree came to be set aside and the suit was restored for trial. Thereupon on 5.9.1991 the suit came to be listed for trial and again called on 6.9.1991 and P.W. 1 was examined. Thereafter, the enquiry proceeded on 9.9.1991, 10.9.1991, 13.9.1991, 16.9.1991 and 18.9.1991 and the evidence of P.W. 1 was completed and to examine the witnesses for the defendant, the suit was posted to 20.9.1991. On that date, D.W.I was said to have been examined in chief and the matter was adjourned to 23.9.1991. Thereafter, the matter was called on 24.9.1991, 30.9.1991 and 3.10.1991, when the learned Counsel for the defendant reported no instructions and the defendant was called absent and the suit was decreed ex parte. It is set aside the said ex parte decree passed on 3.10.1991 for the third time, application in I.A. No. 168 of 1992 came to be filed under Order 9, Rule 13, C.P.C. The said application has been opposed by the plaintiff by filing a counter affidavit. The defendant appears to have filed a certificate from a doctor to show that at the material point of time, the defendant was suffering from asthma and the same was relied upon in support of the claim for condonation.
3. The learned District Munsif, after adverting to all the earlier events referred to supra and in the absence of any oral evidence in support of the application and claim made has not preferred to accept the claim of the defendant. It also observed that if really the defendant was ill as claimed, nothing prevented the defendant to move the court for being examined on commission. On that view, the application came to be rejected.
4. Aggrieved, the defendant filed an appeal before the learned Subordinate Judge, Kumbakonam. The lower appellate court also after adverting to the reasons assigned by the trial court, was convinced of the genuineness and sufficiency of the reasons assigned by the trial court to justify the order of rejection and declined to interfere with the order of the trial court. Hence, the above revision.
5. Learned Counsel appearing for the petitioner contended that the medical certificate produced and filed along with the application must have been accepted to be correct and having regard to the nature of the illness pleaded, the court ought to have set aside the ex parte decree. The learned Counsel also placed reliance upon the decision of a Division Bench of this Court in Sarada Devi v. Revathi alias Jagada Pichammal 1993 T.L.N.J. 71, wherein the defendant who filed the application to set aside the ex parte in a partition suit examined on behalf of herself her husband to substantiate the reasons for not appearing on the date on which the ex parte decree came to be passed and when the courts below rejected the claim for condonation on the ground that no medical certificate has been produced in that case and that there was no independent and corroborative evidence to accept the plea of the defendant, the Division Bench has preferred the view that the laches in non-production of the medical certificate or the copy of the criminal complaint was not deliberate and that they were inclined on the facts of the case to take a compassionate view and infer from the materials on record that the appellant in that case was prevented by sufficient cause for not appearing. In my view, there is no comparison of the said case with the present case on hand. Therefore, the husband of the petitioner made himself available for examination and subjected himself available for cross-examination. Here, except the filing of the certificate, leave alone the non-examination of the doctor, the defendant even has not chosen to go into the box to make a formal proof of the certificate or make himself available for cross-examination. Consequently, the view taken on the facts and circumstances of that case by the Division Bench, cannot be applied, in my view, to the case on hand.
6. I have carefully gone through the orders of the courts below in the light of the plea made on behalf of the petitioner in this Court. If only the lapse was on one occasion, there is some need or justification for taking a compassionate view. On the other hand, the facts highlighted in the order of the trial court do not leave room for any sympathy being shown to the petitioner. As noted supra, the ex parte decree which is now sought to be set aside is the third in the series and the lapse was for the third time. That apart, it is purely in a suit for redemption of a mortgage. If really the petitioner is sure of his claim of agreement to sell and he is in a position to substantiate the same, it is always open to him to seek relief on that basis for which he has reserved his right also. Whatever may be the scope for the said action, I do not see any justification to interfere with the orders of the courts below and the petitioner must be considered to have deliberately adopted these tactics to drag on the proceedings in a suit for redemption of the mortgage. The reasons assigned by the courts below concurrently on a fair and reasonable appreciation of the facts and circumstances of the case to reject the claim for setting aside the ex parte decree do not suffer from any patent error of law or perversity of approach warranting interference in this Court. The revision, therefore, fails and shall stand dismissed. C.M.P. No. 1198 of 1996 also shall stand rejected.