SC ruling on " To set aside Ex Parte decree under section 5

In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by Supreme Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient

. In the same judgment referred to above the Hon'ble Supreme Court in Para 8 of the judgment has observed as follows:

"Para 8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

In view of the above observations made by the Hon'ble Supreme Court, Exparte Decree is set asidable  amd by refusing to condone the delay, the petitioner should not be allowed to face the drastic consequences of exparte decree

Further, in Para 13 of the judgment the Hon'ble Supreme Court has held as follows

While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when court condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss.

Surendrababu Kovuru

You can file the Petition to set aside the exparte decree but the court will see the reasons for not attending court, how many times you have remained absent, etc., Also you have to give proper explanation satisfying the court for the delay in filing the Sec. 5 application.