S VISWANATHA REDDY Vs. N VENKATESWARA REDDY

JUDGEMENT

(1.) Order dated 25-1-1996 passed in LA. No.116 of 1995 in O.S. No.92 of 1986 on the file of learned Subordinate Judge, Cuddapah is the subject matter of controversy in this revision.

(2.) The petitioner is the defendant in the suit filed in O.S .No.92 of 1986 by the respondents herein for recovery of certain money. The petitioner claims that he also filed written statement and the suit underwent a number of adjournments and finally on 23-3-1993 when the suit came up for trial, the petitioner defendant was not present, thereby petitioner defendant was set ex parte and decree was passed on the basis of the suit averments. While so, the petitioner-defendant realised that an ex parte decree has been passed on 23-3-1993 and he made efforts to get the ex parte decree set aside by filing an application under Order 9 Rule 13 of C.P.C. As there was delay an application LA. No.116/95 was filed under Section 5 of Limitation Act seeking to condone the delay of 525 days in filing a petition to set aside the ex parte decree. When the application for condoning delay came up for consideration on 25-1-1996 neither the Counsel for petitioner nor the petitioner was present, more over there was no representation made on their behalf. However, the trial Court by order dated 25-1-1996 allowed the application filed under Section 5 of Limitation Act condoning the delay of 525 days with condition that petitioner-defendant shall deposit 1/4 of the suit amount and costs by 28-2-1996. The said conditional order dated 25-1-1996 is assailed in this revision.

(3.) When the revision is taken up for consideration, it is brought to the notice of the Court that the condition imposed by the lower Court directing the petitioner-defendant to deposit 1/4 of the suit amount and costs by 28-2-1996 is not complied with and hence, by order dt.1-3-1996, the trial Court dismissed the application filed under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree.