S SEKHAR BABU Vs. Y RANMAKRISHNA REDDY

JUDGEMENT

(1.) FIRST respondent filed the suit against the revision petitioner and the second respondent on the basis of a promissory note. Both revision petitioner and second respondent filed their written statements. Subsequently, the suit was decreed ex parte. So revision petitioner filed a petition under Order 9 Rule 13 C. P. C. with a petition to condone the delay of 96 days. By the order under revision, the trial court, relying on M. Narasimha Reddy v. Begari Samuel, 2002 (6) ALD 473 = 2002 (5) ALT 766, observed that it is not necessary for the revision petitioner to file two separate applications, one under section 5 of the Limitation Act and the other under Order 9 Rule 13 CPC because both the reliefs can be prayed for in the same petition and allowed the petition under order 9 Rule 13 CPC on some conditions. Alleging that the conditions imposed by the trial Court are onerous, the revision petitioner preferred this revision.

(2.) THE order under revision is unsustainable. The assumption on the part of the trial Court that in view of the ratio in m. Narasimha Reddy's case (supra), there is no need to file a separate application under Section 5 of Limitation Act for setting aside an ex parte decree, even in case of delay is wholly incorrect and is erroneous. The trial Court must have made the said observation without going through the said decision in its entirety. Had the Court below taken pains to go through the said decision it would not have failed to notice that the facts in that case are entirely different from the facts in this case. In that case, as the defendant was not served with summons, a paper publication was made and on the basis of the paper publication the defendant in that suit was set ex parte. Later, after coming to know about the ex parte decree passed against him, the defendant in that suit filed an application under Rule 13 of Order 9 CPC to set aside the ex parte decree with a petition to condone delay, inasmuch as that petition was filed beyond 30 days from the date of ex pane decree. In view of Article 123 of the Limitation Act, which lays down that the period of limitation for setting aside an ex parte decree in case where summons are not served, is 30 days from the date of knowledge, and as the summons in that case were not personally served and as the defendant in that case was set ex parte on a paper publication, the learned judge, in the facts and circumstances of that case, held that filing of a petition under section 5 of Limitation Act was really not necessary.

(3.) IN this case, as summons were duly served on the revision petitioner, as per Article 123 of Limitation Act the period of limitation is 30 days from the date of decree. As the petition under Rule 13 of order 9 CPC is filed more than 30 days after the date of decree, revision petitioner has to necessarily file a petition under section 5 of Limitation Act, because without condonation of delay, the petition under Rule 13 of Order 9 C. P. C. filed beyond 30 days from the date of decree cannot be entertained by the Court.