KALAKATA KRISHNAIAH Vs. B.JAYAMMA

JUDGEMENT

(1.) The petitioner is the defendant filed this Civil Revision Petition under Article 227 of the Constitution of India against the order dated 13-08-2019 in I.A.No.1050 of 2017 in O.S.No.236 of 2007 passed by the Additional Senior Civil Judge, Kadapa, whereby the petition filed under Section 5 of the Limitation Act to condone the delay of 541 days in filing the petition to set aside the ex parte decree dated 04.01.2016 is dismissed.

(2.) The respondents/plaintiffs filed the suit for partition and separate possession of 1/3rd share each of the plaintiffs 1 and 2 in the suit schedule property and for costs. The trial Court, after filing the written statement filed by the petitioner-defendant and after conducting trial based on the evidence of PWs.1 and 2, decreed the suit on 04.01.2016 and passed a preliminary decree in favour of the plaintiffs. Thereafter, the petitioner-defendant filed an application seeking to set aside the ex parte decree dated 04.01.2016. Since there was delay in filing the said application, the petitioner-defendant filed I.A.No.1050 of 2017 under Section 5 of the Limitation Act to condone the delay of 541 days in filing the application to set aside the ex parte decree. But the trial Court dismissed the said application by the order dated 13.08.2019. Aggrieved by the said order, the present Civil Revision Petition came to be filed.

(3.) Smt. M. Sivajyothi, learned counsel for the revision petitioner would contend that the trial Court made an observation that the judgment is not an ex parte judgment. The trial Court failed to see that the defendant did not enter into the witness box to prove his case as put forth in the written statement. She further contends that the trial court ought to have condoned the delay on the ground that the petitioner-defendant was admitted as inpatient.