JOKAM REDDY Vs. GOKAR MALLAIAH

JUDGEMENT

(1.) An appeal was presented in this Court with a delay of 3 years 6 months and 22 days. Punnayya, J. dismissed the petition filed under Section 5 of the Indian Limitation Act to condone the delay. This Letters Patent Appeal is against that judgment of dismissal.

(2.) A suit was filed to recover a sum of Rs. 5,500 and was numbered as O. S. 174/68 in the Court of the Second Additional Judge, City Civil Court. The written statement was filed by the defendants on 17-10-1969 and later the issues were framed. The suit underwent very many adjournments and finally on 18-2-1972 when the defendants, who were twelve in number, were absent, an ex parte decree was passed. They filed a petition under Order. 9, Rule. 13, Civil Procedure Code on 1-3-1972 to set aside that ex parte decree. That was, however, dismissed on 28-2-1974. C. M. A. No. 199/74 was filed against that order of dismissal but that was also dismissed on 7-8-1975. Keeping quiet for a month thereafter, the defendants applied for copies of the ex parte decree on 6-9-1975. They received them on 27-11-1975. Then they presented an appeal against the ex parte decree in this Court on 9-12-1975 with a petition to condone this long delay in filing the appeal.

(3.) Our learned brother Punnayya, J. accepted the contention of the plaintiff respondent that when two remedies were open to the affected party when an ex parte decree was passed and if one remedy like filing a petition for setting aside that ex parte decree under Order. 9, Rule. 13, Civil Procedure Code was adopted, the affected party cannot thereafter avail itself of the other remedy of preferring a regular appeal against the ex parte decree. The learned Judge relied on two Calcutta decisions in Chandra Rai Chowdhary v. M. Thangini Dessi, ILR (1895) 23 Cal 325 and Rajendranath Kanrar v. Kamal Krishna Kundu Chowdary. AIR 1932 Cal 558 and held that the party, who had unsuccessfully pursued his other remedy under Order. 9, Rule. 13, Civil Procedure Code, cannot also choose to avail himself of the right to prefer a regular appeal against the ex parte decree. He held that the explanation offered by the petitioners for condonation of delay was untenable. In the view he took, he dismissed the petition under Section 5. The unsuccessful defendants 1 to 12 have preferred this Letters Patent Appeal.