ESWARAIAH Vs. S A GAFFOOR

JUDGEMENT

(1.) The petitioner, second defendant in O.S.No.13/90 on the file of the Court of Subordinate Judge, Penukonda, filed this Revision Petition against the order dt.30-10-1996 passed by the learned Subordinate Judge in I.A.No.50/95 in the above suit, wherein the application to condone the delay of 71 days in filing tile application under Order IX Rule 13 of C.P.C. was dismissed by holding that the Judgment dated 13-12-1994 in the suit is on merits and hence the application under Order IX Rule 13 of C.P.C. is not maintainable and as such this application for condonation of the delay in filing the application is not maintainable.

(2.) The learned Counsel appearing for the respondents raised a preliminaryobjection that no revision can lie against an order passed by the lower Court under Section 5 of the Limitation Act (for short, the Act) and the petitioner has to file an appeal against the order as the dismissal of the application under Section 5 of the Act amounts to dismissal of the application filed under Order IX Rule 13 of C.P.C. The above contention was raised by the respondents, Counsel on the basis of a judgment of this Court in Divisional Engineer (Operations), APSEB (Urban) Power House, Nizamabad and others vs. Shaik Mohammed. It is also his case that as the ex parte judgment of the trial Court happened to be on merits, the application under Order IX Rule 13 filed by the petitioner is a misconceived one.

(3.) To appreciate the rival contentions of the parties a little factual background is required.