B SAMEERUN Vs. KOTLA HIRAL BASHA

JUDGEMENT

(1.) THE respondent filed OS no. 479 of 2002 in the Court of Principal junior Civil Judge, Proddatur, against the petitioners, for the relief of specific performance of an agreement of sale, dated 19. 1. 1998, said to have been executed by the husband of the 1st petitioner and father of petitioners 2 to 5. The trial Court had set petitioners 1 to 3 ex parte. Since petitioners 4 and 5 were minors, at the relevant point of time, an Advocate was appointed as Guardian for them and a written statement is said to have been filed on their behalf. The suit was ultimately decreed ex parte on 20. 6. 2005.

(2.) THE petitioners filed an application under IX Rule 13 CPC, to set aside the ex parte decree, dated 20. 6. 2005. They have also filed IA No. 831 of 2006, under section 5 of the Limitation Act, to condone the delay in presenting the said application. The trial Court dismissed the I. A. , through its order, dated 5. 4. 2007. The petitioners filed CMA No. 15 of 2007 in the Court of ii Additional District Judge, Kadapa at proddatur, against the order in LA. No. 831 of 2006. The same was dismissed on 14. 12. 2007. Hence, this civil revision petition.

(3.) LEARNED Counsel for the petitioners submits that the delay in presenting the application was wrongly mentioned as 1348 days, though the application was filed hardly within 8 months, from the date of the ex parte decree. He further submits that the trial Court had furnished a detailed account of the events in the suit and it is not evident that the 1st petitioner was either served with summons in the suit, or was set ex parte. He contends that the appointment of Guardian by the trial Court for petitioners 4 and 5 was contrary to law and the fact that even the Guardian reported no instructions, discloses the prejudice, to which they were put. He also submits that the Courts below ought to have taken into account, the fact that the petitioners are residents of a distant place and no serious effort was made to ensure service of summons on them.