CHAPALA PEDDA THAYANNA Vs. CHAPALA CHINNA THAYANNA

JUDGEMENT

(1.) This Civil Revision Petition arises out of order dated 15.02.2010 in Civil Miscellaneous Appeal No. 19 of 2009 on the file of the learned II-Additional District Judge, Kurnool at Adoni (for short "the lower appellate Court"), whereby he has confirmed order dated 30.03.2009 passed by the learned Principal Junior Civil Judge, Adoni (for short "the trial Court") in I.A. No. 358 of 2007 in O.S. No. 192 of 2007.

(2.) The Petitioner is Defendant No. 1 in the suit. Respondent No. 1 filed the suit against the Petitioner and six others for partition and separate possession of their shares. The Petitioner remained ex parte in the suit and consequently an ex parte preliminary decree was passed against him on 18.09.2007. The Petitioner filed I.A. No. 358 of 2007 under Order IX Rule 13 Code of Civil Procedure to set aside the ex parte decree. Respondent No. 1 has, inter alia, taken objection that while the ex parte decree was passed on 18.09.2007, the application was filed on 20.12.2007 i.e., 3 months 2 days after the passing of the ex parte decree as against the period of limitation of 30 days without filing an application for condonation of delay. The Petitioner has contested the said plea. The trial Court upheld the objections of Respondent No. 1, by placing reliance on 41rticle 123 of the Limitation Act, which prescribed limitation of 30 days for setting aside the ex parte decree. The plea of the Petitioner that the limitation shall be reckoned from the date of the knowledge of the decree was rejected by the trial Court relying on the said Article, which envisages that the period of limitation will start running from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. It is not the pleaded case of the Petitioner that summons were not served on him. Therefore, his plea was wholly misplaced and was rightly rejected by the trial Court. The Petitioner was unsuccessful in convincing the lower appellate Court to reverse the order of the trial Court and as a result, the Civil Miscellaneous Appeal also ended in its dismissal by order dated 15.02.2010.

(3.) At the hearing, Sri P. Nagendra Reddy, learned Counsel for the Petitioner, made strenuous efforts to convince this Court that the Petitioner may be given a fresh opportunity to file an application for condonation of delay.