JOKAM REDDY Vs. KOKAR MALLIAH

JUDGEMENT

(1.) In this petition, the petitioners seek the condonation of delay of three years, six months and twenty two days in filing the appeal. As to why the delay was caused, the petitioners explain that the trial court passed ex parte decree on 18-2-1972. Then they filed appropriate for setting aside the ex parte decree on 1-3-1972 and the said petition was dismissed on 28-2-1974. Then the petitioners preferred C.M.A. 199 of 1974 in this Court. The C.M.A. was ultimately dismissed on 7-8-1975. Then the petitioners filed copy application on 6-9-75 for obtaining the certified copy of the judgment and decree and the same was furnished on 27-11-1975. Then the petitioners had to raise expenses, for preferring appeal and they could raise the said expenses by 9-12-1975. Then they filed the appeal against the ex parte decree. It is for these reasons that they could not file the appeal within time. They, therefore filed this petition under Section 9 of Limitation Act for condonation of delay of 3 years 6 months and 22 days in filing the appeal. The petitioners contend that the delay is not on account of negligence on their part and the delay has occurred on account of their pursuing, legal remedy available under law.

(2.) Sri Subhashan Reddy contends tat since the petitioners had taken proceedings mentioned above in various courts, the petitioners could not prefer this appeal within time and hence the delay should be condoned.

(3.) The learned counsel for the respondent, on the other hand, contends, that when two remedies are available and when the party had chosen to pursue one of the remedies they party cannot now take back and say that the delay is not on account of the negligence and hence benefit of Section 5 cannot be given to the petitioners.