KALIDINDI RAMA RAJU Vs. MAELIRAJU SATYAKALA

JUDGEMENT

(1.) The revision petitioners are the defendants in OS.No.80/1990 on the file of Subordinate Judge, Bhimavaram. They sought for condonation of delay of 4 years 8 months and 8 days in filing a petition under Order IX Rule 13 of the Code of Civil Procedure for setting aside the exparte decree therein. The learned Subordinate Judge dismissed the petition with costs on the ground that there are no bona fides on the part of the petitioners are there is abnormal delay for which no just and reasonable cause is shown by them. Hence, this revision petition.

(2.) The facts leading to this revision petition in brief are that the sole respondent filed O.P.No.29 of 1989 seeking permission to file the suit as an indigent person and the same was allowed and O.S.No.80/1990 came to be registered as the suit for declaration of title and delivery of the suit scheduled property bearing RS.No. 1561 admeasuring 3 acres situated at Utlapadu village, Bhimavaram Mandal. Summons were issued to the revision petitioners, among whom first petitioner received the same on behalf of himself and the other revision petitioners on 28-7-1-990. The suit was called on 17-8-1990 and as the revision petitioners did not choose to appear, they were set ex parte. An ex parte preliminary decree was passed in favour of the respondent on 10-9-1990. Thereafter the respondent filed I.A.No.385/1991 under Order XXVI Rule 13 read with Order XX Rule 12 and Section 151 C.P.C. for appointment of an Advocate-Commissioner to ascertain mesne profits with effect from 1987. The revision petitioners remained ex parte in those proceedings too. Thus, IA.No.385/1991 has been allowed and an Advocate- Commissioner was appointed. The Advocate- Commissioner is said to have served notices upon the revision petitioners in the enquiry for mesne profits and submitted a report on 15-11-1992 assessing the same at Rs.45,000- per year. Then a final decree has been passed by an order dated 28-12-1992 awarding mesne profits of Rs.1,35,000/-. Then the respondent filed EP .No. 10/1995 on 15-3-1995 for execution of the decree in OS.No.80/1990. The lower Court issued a Warrant Under Order XXI Rule 13 CPC directing the Bailiff to deliver possession of the suit schedule property to the respondent by removing any unauthorised persons holding the said property. The Bailiff executed the warrant on 6-4-1995 and delivered vacant possession of the suit schedule property to the respondent and conducted a Panchnama to that effect. Then the revision petitioners filed IA.No.462/1995 under Section 5 of Limitation Act for condonation of nearly 5 years in filing the application for setting aside the ex parte decree under Order IX Rule 13 CPC.

(3.) Revision petitioner No.1 filed his affidavit in support of the above petition. He stated that no proper summons are served on him at any stage right from O.P.No.29/1989 and he learnt that the plaintiff filed O.P. for delivery of plaint schedule property on 6-4-1995. He further asserted that except on 6-4-1995, he has got no previous knowledge about the -suit and hence there is no willful negligence on his part in not filing the petition for setting aside the ex parte preliminary decree dated 10-9-1990. He then adverted to the merits and stated that he has been in possession and enjoyment of the plaint schedule property for more than 25 years by paying land revenue and other taxes regularly and he has got good defence in the above suit.