DILAWER FIRDOUS Vs. P S RAO

JUDGEMENT

(1.) This Revision Petition is filed by the defendant who suffered an ex parte decree assailing the order of the Court below refusing to condone the delay in filing an application to set aside the ex parte decree.

(2.) The facts which are necessary for determination of the question involved in this Revision Petition, are as follows: The respondent herein, filed O.S. No. 3636 of 1994 on the file of the Court of the III Assistant Judge, City Civil Court at Hyderabad, against the revision petitioner seeking a decree for recovery of a sum of Rs. 45,270/- with interest at 18% p.a. The Revision Petitioner, hereinafter referred to as the defendant, filed written statement on 13-4-1995. After settlement of issues the suit was taken up for trial and on 11-3-1997 the evidence of the plaintiff was closed. The suit was adjourned to 21-3-1997 for the evidence of the defendant, since the defendant and her counsel were called absent, the evidence of the defendant was closed and the matter was adjourned to 31-3-1997. Again on 31-3-1997 the defendant and her counsel were called absent and therefore, the suit was adjourned to 29-4-1997 on which day judgment was pronounced granting a decree in favour of the plaintiff. In pursuance of the said decree, the plaintiff filed E.P.No.138 of 1997 and it appears that movable property of the defendant was attached. At that stage the defendant filed an application under Order 9 Rule 13 of CPC seeking to set aside the ex parte decree dated 29-4-1997 and also I.A.No. 938 of 1997 under Section 5 of the Limitation Act to condone the delay of 59 days in filing the petition to set aside the ex parte decree.

(3.) In the affidavit filed in support of I.A.NO. 938 of 1997, the defendant has stated that due to her illness, she had gone to Gulbargha to see her son who is a medical student and again she fell sick, and therefore, she could not contact her counsel resulting in the ex parte decree on 29-4-1997. She also stated that on her return to Hyderabad, she came to know about the ex parte decree and also the order in E.P. No. 138 of 1997 directing attachment of her movable property. She stated that immediately she rushed to her counsel and since he was not available she contacted another advocate by name Mr. Raizuddin, and filed the application to set aside the ex parte decree as well as the petition to condone the delay.