AUDISESHAMMA Vs. VENKATA LAKSHMINARAYANA

JUDGEMENT

(1.) The above Civil Miscellaneous Appeal is preferred by the defendant in OS.No. 51/77 on the file of the Subordinate Judge, Chirala assailing the order made by the learned Subordinate Judge dismissing her application, I.A.No. 1715/78 filed under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree passed against her in the suit on 27-10-78, while the above Civil Revision Petition is preferred against the order passed by the learned Subordinate Judge returning another application filed by her for condonation of the delay of 18 days in filing I.A.No. 1715/78 on the ground that no such application lies under the amended provisions of Order 9, Rule 13 of the Code of Civil Procedure. The respondents to the Civil Miscellaneous Appeal and the Civil Revision Petition are common. The 2nd respondent is the mother of the 1st respondent, a minor represented by her as his next friend and guardian.

(2.) The facts giving rise to the above miscellaneous appeal and the revision petition may be briefly stated, the reference to the parties being made as they are arrayed in the Civil Miscellaneous Appeal. O.S. No. 51/77 on the file of the Subordinate Judge, Chirala is instituted by the respondents against the appellant for partition of the estate held by her into two shares and for separate possession of one such share, alleging that the deceased husband of the second respondent was taken in adoption by her. The suit was posted to 7-10-1977 for appearance of the appellant and she was personally served with the summons in that behalf. She did not choose to appear on 7-10-1977. She was, therefore, set exparte. On an application filed by her, the order dated 7-10-1977 setting her exparte, was set aside. Later she engaged two advocates, one from Chirala and another from Ongole. After she filed her written statement, issues were framed. The suit was posted for trial on 26-10-1978. The appellant did not attend the Court and the suit was, therefore, adjourned to the next day, i.e., 27-10-1978. Even on 27 10-1978 the appellant did not make her appearance in the Court. The Court was therefore, constrained to pass an ex-parte decree against her. It was only on 12-12-1978 the appellant filed I.A. No. 1715/78 under Order 9 Rule 13, C.P.C. for setting aside the ex-parte decree. Another application was also filed by her for condonation of the delay of 18 days in filing I. A. No. 1715/78. LA. No. 1715/78 was dismissed by the Lower Court mainly on the ground that no sufficient cause was made out by the appellant from appearing in the Court when the suit was called on for hearing. The other application was returned by the Court on the ground that under the amended provisions of Order 9, Rule 13, C.P.C. no such application lay. As alredy stated, assailing the two orders the appellant preferred the miscellaneous appeal and the revision petition.

(3.) The case of the appellant is that she was suffering from pain in her heart, that on 21-10-1978 she had an attack of her heart, that she was admitted in the Nursing Home of Dr. Ch. Janakiramaiah at Markapur for treatment, that she could not, therefore, attend the Court on 26-10-1978, that she was discharged from the Nursing Home only on 5-12-1978 and that it was only on 10-12-1978 during her visit to Ongole she was informed by her Advocate that the ex-parte decree was passed against her on 27-10-1978.