STATE BANK OF HYDERABAD Vs. Y VENKAT REDDY

JUDGEMENT

(1.) The present revision is directed against the dismissal of I.A. No.96/1998 in O.S. No.46/1991 dated 26-7-2000 on the file of Senior Civil Judge, Bhongir, which was filed by the petitioner-plaintiff-State Bank of Hyderabad, L.B. Nagar Branch, seeking the indulgence of the Court for condonation of 1445 days delay in filing an application for passing of final decree pursuant to a preliminary decree in a mortgage suit which was obtained against the respondent herein in O.S. No.46/1991.

(2.) The brief facts of the case relevant for the purpose of disposal of the present revision in short are as follows: The petitioner is a nationalized bank and obtained a preliminary decree against the respondent herein in O.S. No.46/1991 on the file of Senior Civil Judge, Bhongir on 26-7-2000 (sic.), for a sum of Rs.3,28,755.35 ps. The petitioner was to file the application for passing of final decree within three years from the date fixed in the preliminary decree for redemption. In the present case, though the advocate had applied for C.C. of preliminary decree and obtained the same on 23-3-1994, and transmitted to the bank in April 1994, the Branch Manager misplaced the file and copy of the decree and as such steps could not be taken by petitioner earlier for passing of final decree. It was alleged in the affidavit filed in support of Section 5 (Limitation Act) petition that after the concerned file was traced the same was sent to bank advocate for filing the application for passing final decree and in fact that application was filed on 16-1-1998 by which time there occurred delay of 1445 days, which was sought to be condoned under the present I. A. No.96/1998. Though notice was sent to the respondent in delay condonation petition, the respondent did not choose to contest or oppose the applications and remained ex parte. The Court below having heard the petitioner and after perusing the affidavit, dismissed the petition under Section 5 of the Limitation Act on merits under various reasons. Aggrieved by the dismissal of I. A. No.96/1998, the petitioner filed the present revision.

(3.) Initially notice was ordered to the respondent in the revision and here also the respondent remained ex parte. The revision petitioner was heard and taking into consideration the averments in the affidavit filed in support of the delay condonation petition in I. A. No.96/1998 and also taking into consideration that respondent did not choose to deny the allegations in the affidavit, and the nature of proceedings being recovery of money by a nationalized bank, the revision petition was allowed by this Court on 30-3-2001 by a short order. After pronouncement of the order, this Court entertained a doubt whether Section 5 of the Limitation Act could be applied to final decree proceedings in mortgage suits, and whether Section 5 of the Limitation Act could be applied to the provisions of Order 34 of C.P.C. Then this Court listed the matter suo motu under the caption "for being mentioned" and with the consent of the revision petitioner's advocate, recalled the earlier order dated 30-3-2001 and posted the matter for further hearing. As the respondent was not being represented through any Counsel, Sri Yamarthi Chandra Sekhar, Advocate was appointed as Amicus Curiae to assist the Court. In the backdrop of this, the revision petition is heard afresh.