NAGULAPU RAJU Vs. TIRUPATHI

JUDGEMENT

(1.) THE civil revision petition is directed against the order of the Senior Civil judge, Nirmal, dated 04-02-2009 in I. A. No. 744 of 2006 in O. S. No. 26 of 2003. I. A. No. 744 of 2006 was filed to condone the delay of 252 days in filing the petition to set aside the ex parte decree and the defendant/petitioner claimed that due to her suffering from jaundice and severe fever from 10-12-2005 till 25-02-2006, she was set ex parte and an ex parte decree was passed against her in O. S. No. 26 of 2003 on 13-02-2006. When the plaintiff/decree-holder filed e. P. No. 6 of 2006 also, she could not file her counter on 01-11-2006 again due to severe fever from 10-08-2006 to 15-11-2006. Unfortunately, even her counsel was suffering from cancer undergoing treatment at Hyderabad and hence, she sought for condonation of delay in filing the petition to set aside the ex parte decree.

(2.) THE decree-holder opposed the request denying the allegations unsupported by any evidence and contended that the senior counsel engaged by the defendant is regularly attending the Court and the claim of the decree-holder was upheld in i. P. No. 1 of 2003 filed by the defendant. The ex parte orders in the suit and the execution petition were passed by the Court after giving a number of opportunities on number of dates of hearing and hence, the plaintiff/decree-holder sought for dismissal of the petition.

(3.) IN the impugned order, the trial Court following 2004 (4) ALT 22. 2 (DN OHC)holding that the Court has no power to extend the period of limitation on equitable grounds, if no sufficient grounds were made out to condone the delay, observed that the defendant, who did not file any documents in support of her contentions and did not explain the delay properly, cannot stand on merits. Noting the earlier litigation in I. P. No. 1 of 2003 and the proceedings in the suit and the execution petition, in which the defendant did not avail the opportunities, the trial Court dismissed the petition without costs. The defendant claims in this revision that Sri Hanmanth Reddy, her counsel, who died of cancer in January, 2006, did not inform her of the ex parte order and unfortunately, even Sri C. Bheem Rao, advocate engaged by her on the death of hanmanth Reddy, also died in November, 2006, due to which she could not file the petition to set aside the ex parte decree till a delay of 252 days. The decree-holder/respondent in the counter-affidavit in the petition for stay herein contended that the revision petitioner appeared in the execution proceedings on 16-06-2006 and obtained adjournments till 01-11-2006 and hence, there was no explanation for the delay of 252 days. He also claimed that an appeal lies under Order XLIII Rule 1 (d) of the Code of Civil Procedure (for short "c. P. C. ") against an order under Order IX Rule 13 C. P. C. rejecting to set aside an ex parte decree and in Divisional Engineer, APSEB v. Shaik Mohammed and A. V. S. Prasad v. Satya Chits and Finance, a revision was held to be misconceived. Hence, the respondent sought for dismissal of the revision petition.