RAZIUDDIN MOHD SIDDIQUI Vs. ZAIHAB KHATOON

JUDGEMENT

(1.) A Division Bench of this Court by its order dated 26.4.2002 passed in CMP No.7201 of 2002 in CCCA (SR) No.27145 of 2002 did not agree with the view expressed and the law laid down by a Division Bench of this Court in Chandrapalaka Prabhakar v. Chandrapalaka Sadanandam, 1997 (4) ALT 689, which in its turn had followed the decision of another Division Bench of this Court in Jokam Reddy and others v. Gokar Mallaiah, AIR 1977 AP 367, and thus referred the matter to a Larger Bench for an authoritative pronouncement.

(2.) When this Bench was constituted, we noticed in our order dated 27.8.2004 that though no question had been formulated by the Division Bench, reference by the Division Bench was on two counts, namely, (1) as to the applicability of Section 14 of "the Limitation Act, 1963 to an application filed seeking condonation of delay in filing appeal against ex parte decree, when such an appeal is filed after dismissal of an application filed under Order DC, Rule 13 of the Code of Civil Procedure and, (2) as regards the maintainability of appeal filed against the ex parte decree under Section 96 of the Code of Civil Procedure after dismissal of application under Order DC, Rule 13 of the Code.

(3.) In order to appreciate the questions arising for determination, facts-in-brief may be stated: Respondents are the plaintiffs and the appellants-petitioners are the defendants. Plaintiffs filed the suit for specific performance of an agreement of sale. The defendants remain absent despite service of summons. On 4.8.1994, ex parte decree was passed. Defendants filed an application under Order DC, Rule 13 of the Code for setting aside the ex parte decree along with an application under Section 5 of the Limitation Act seeking condonation of delay in late filing of the said application. Application seeking condonation of delay was dismissed on 14.8.1997. Feeling aggrieved, revision petition was filed which was allowed on 26.4.2001 subject to payment of costs. Defendants' application for setting aside the ex parte decree was then considered on merits but was dismissed by the lower Court. Against the said order, an appeal was preferred which was dismissed on 4.4.2002. After dismissal of the appeal, a regular appeal was filed on 8.4.2002 under Section 96 of the Code of Civil Procedure by the defendants against the ex parte decree along with an application (CMP.7201 of 2002) seeking condonation of delay in filing the appeal. The appeal is still at the SR stage (CCCA.(SR).No.27145 of 2002). The delay was sought to be condoned on the ground that the defendants-petitioners had diligently been prosecuting the matter by filing an application under Order DC, Rule 13 of the Code. Though there was delay in filing the application under Order DC, Rule 13 of the Code, the same was condoned but the application filed under Order DC, Rule 13 of the Code was dismissed on merits and appeal (CMA.No.119 of 2002) filed against the said order was also dismissed on 4.4.2002. Appeal under Section 96 of the Code was filed on 8.4.2002. Therefore, the period from 22nd October, 1994, the date on which the application under Order DC, Rule 13 of the Code was filed to 4.4.20'02, the date on which the application filed under Order DC, Rule 13 of the Code was dismissed, was sought to be excluded on the ground that defendants-petitioners had diligently been prosecuting the matter, there was no delay or in any case the delay be condoned.