MD ISMAIL Vs. V SURYANARAYANA RAO

JUDGEMENT

(1.) The revision petitioner is defendant No.2 in O.S.No.3956 of 1996 on the file of the I Assistant Judge, City Civil Courts, at Secunderabad. The revision petitioner filed an application in IA No.731 of 1988 under Section 5 of the Limitation Act, 1963 (for short 'the Act') to condone the delay of 426 days in filing the application to set aside the ex parte decree dated 24-6-1987. For the purpose of convenience, the parties will be referred to as plaintiff and defendant No.2 as arrayed in the suit.

(2.) The plaintiff had filed the suit against defendant No.2 for declaration and perpetual injunction and the Court below was pleased to set him ex parts for non-appearance and posted the case to 28-1-1987. On 28-1-1987, the Court below was pleased to dismiss the suit for default for non-representation of the plaintiff and his Counsel. Consequently, the plaintiff filed an application for restoration of the suit. The said application was allowed on 20-3-1987 and the suit was restored without giving notice to the 2nd defendant and subsequent thereto an ex parte decree was passed on 24-6-1987. The restoration of the suit was without notice and hence it was not within the knowledge of the 2nd defendant, appears to be the main contention of the 2nd defendant/revision petitioner.

(3.) The Court below, while dismissing the application filed by the 2nd defendant/ revision petition under Section 5 of the Act to condone the delay of 426 days in filing an application for setting aside the ex parte decree dated 24-6-1987, had made the following order: