G SUBBA RAO Vs. S V RAMANA RAO

JUDGEMENT

(1.) THE plaintiff is the petitioner herein THE respondent has been set exparte. To set aside that order an application under Order IX Rule 13 CPC has been filed. Since there was delay of 21 days in filing the above said petition an application under Section 5 of the Limitation Act has been filed. Now delay has been condoned by the Court below as against which this revision petition is filed. THE contention of the learned counsel for the petitioner is that under Sec. 17 of the Provincial Small Cause Courts Act 1887 procedure is provided to set aside the cx-parte decree either by offering a security for the performance of the decree or compliance with the judgment as the case may be, Unless that compliance is made the application to condone the delay is not maintainable and that Court below has committed grievous error of jurisidiclion in condoning the delay. I find no force in the contention. Section 5 of Limitation Act 36 of 1963 (for short 'the Act') provides that any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908 may be admitted after the expiry of the prescribed period if the appellant or the applicant satisfies the Cpurt that he had sufficient cause for not preferring the appeal or application within such period. THE explanation is not necessary and hence omitted. A reading thereof provides that except the delay under Order XXI of the Code of Civil Procedure in all other proceedings either in appeal or application the Court has been given power to admit an appeal or an application within the expiry of the prescribed period of limitation provided the appellant or the applicant satisfies the Court that he has sufficient cause for not preferring the appeal or making the application within the prescribed period. To set aside the ex parte deceree Article 123 provides 30 days from the date of the decree or where summons or notice was duly served when the applicant had knowledge of the decree. THErefore on expiry of 30 days from the date of the decree or from the date of knowledge the Court is given power to entertain the application to set aside the ex-parte decree provided the applicant satisfies that he has sufficient cause for not making the application. Section 17 of the Provincial Small Cause Courts Act 1887 provides thus:

(2.) THUS considered I hold that the order of the Court below is not vitiated by any error of jurisdiction warranting interference of this Court. The Civil Revision Petition is accordingly dismissed.