SINGARENI COLLIERIES COMPANY LIMITED Vs. P NARASINGA RAO

JUDGEMENT

(1.) Petitioner under Section 5 of the Limitation Act to condone the delay of 67 days in filing the petition under Order IX Rule 13 of the Code of Civil Procedure, was dismissed by the learned Junior Civil Judge by the order under revision, holding that as petition under Order IX Rule 13 CPC is not maintainable, petition to condone delay in filing such a petition also is not maintainable.

(2.) Revision petitioners having put their appearance in the suit took time for filing their written statements, and since they failed t6 file their written statements in spite of several adjournments being granted to them on imposition of costs the trial Court passed decree against them on 9-5-1997. Revision Petitioners filed a petition under Rule 13 of Order 9 CPC to set aside the said decree, with the present petition to condone the delay of 67 days under Section 5 of Limitation Act. The Court below holding that as the decree was passed for the revision petitioners not filing written statements, the same is covered by Rule 5 of Order VIII CPC and relying on Satya Narayan Sah vs. Brij Gopal Mundra1 and The Traders' Bank Ltd. vs. Avtar Singh2 held that such decree cannot be said to be an ex parte decree, and so the petition under Order IX Rule 13 CPC is not maintainable and consequently dismissed the petition filed under Section 5 of Limitation Act by the order under revision.

(3.) Placing strong reliance on N. Jayaraman vs. M/s. Glaxi Laboratories India Ltd.3, M/s. Kuvarp Industries, Bangalore vs. State Bank of Mysore4 and M/s. M. Manik Peter vs. K. Surendranathan5 Ms. Jyothi Eswar, appearing on behalf of the Revision Petitioners contended that decree passed against the defendants for their not filing written statement does not cease to be an ex parte decree, and for setting aside such decree petition under Order IX Rule 13 CPC is maintainable. She contended that as petitioners have established sufficient grounds, for condoning the delay that occurred in filing the petition under Order IX Rule 13 CPC the delay of 67 days may be condoned.