EAGALAPATI VENKATESHWARA RAO Vs. LATA DEVI MALU

JUDGEMENT

(1.) The respondent filed O.S.No.58 of 2001, against the petitioner, in the Court of Senior Civil Judge, Nizamabad, for redemption of a mortgage, covering a sum of Rs.2,76,000/-. An ex-parte preliminary decree was passed on 3.8.2001. Thereafter, the petitioner filed I.A.No.125 of 2002, for final decree. The same was allowed on 12.8.2002. The petitioner filed an application, under Order IX Rule 13 C.P.C., to set aside the ex-parte preliminary decree, passed on 3.8.2002. Since there was delay of 873 days, he filed I.A.No.97 of 2004, under Section 5 of the Limitation Act.

(2.) Petitioner pleaded that he shifted his residence from Nizamabad to Vijayawada, in the year 2002, and on account of the same, he was not aware of the proceedings initiated against him, by the respondent. As regards the publication of notice in the local newspaper, he pleaded that the edition, in which the notice was published, is not circulated at the place, where he was residing, and ultimately prayed for condonation of delay.

(3.) The respondent filed counter affidavit, denying the allegations of the petitioner. He pleaded that almost at the same time, when the suit was filed by him, the petitioner filed I.P.No.18 of 2001, in the court at Nizamabad itself, and he furnished his address in that IP as 'Ekashila Apartments, Nizamabad. A further plea was taken to the effect that when the summons could not be served, on account of the locking of the flat, substituted service was effected, and there is no truth in the plea taken by the petitioner.