GUNDA JAGAN MOHAN RAO Vs. KANNETI KRISHNAIAH

JUDGEMENT

(1.) The revision is directed against an order declining to entertain the petition filed under Section 5 of the Limitation Act seeking condonation of delay of 183 days in filing a petition to set aside the order of dismissal for default passed in E.A. No.94 of 96 in E.P. No.9 of 1996.

(2.) The contention of the learned Counsel for the petitioners is that he filed E.A. No.94 of 96 under Order 21 Rule 58 C.P.C making claim over the E.P. schedule property i.e., Ac.2.00 in S.No.554 and house-site measuring 0.4 guntas in S.No.765/AA in Mellacheruvu and questioning the attachment of the property obtained by the 1st respondent herein on the ground that the schedule property is the self acquired property of their late father who bequeathed the house-site in favour of the petitioner by executing a registered sale deed dated 16-6-1989 and after the death of father the 1st petitioner became the absolute owner and possessor of the house-site and both the petitioners are in joint possession of 1/3rd of Item No.1 of the property and that their Counsel informed the date of adjournment of E.A. No.94/96 as 19-10-1997 by way of a letter just a day before filing of the present petition and the petitioner came to know that the Court has dismissed E.A. 94 of 96 for default on 19-10-1997 and they could not attend the Court on 19-10-1997 as the letter addressed by the learned Counsel has been lost in postal transit. Therefore there is a delay in filing a petition to set aside the order of dismissal.

(3.) The earned Counsel for the respondent herein contended that the petition under Section 5 of the Limitation Act is not maintainable. He also opposed the bona fides of the averments in the affidavit and submitted that no evidence has been placed before this Court for condoning the delay.