STATE OF ANDHRA PRADESH Vs. A SWAMINAIDU

JUDGEMENT

(1.) This revision is filed questioning the order dated 29-04-1999 passed in I.A. No. 767 of 1994 in O.S.No. 570 of 1988 on the file of the Junior Civil Judge, Salur.

(2.) The defendants in the suit are the petitioners herein. The respondents/ plaintiffs filed the suit for a direction against the petitioners/defendants to incorporate the orders of the Special Deputy Tahsildar (Inams) dated 6-9-1960 and to fix the ryotwari assessment for the land of an extent of Ac. 67.32 cts. mentioned as A schedule by means of mandatory injunction and to restrain the petitioners from interfering with B schedule lands with standing crops. At the stage when the matter stood for filing the written statement the petitioners/defendants could not file written statement and the Court below awarded costs to the respondents/plaintiffs and posted the matter on 24-07-1990. Since no written statement was filed the Court below passed the ex parte decree on 24-07-1990.

(3.) The petitioners/defendants filed I.A. 767 of 1994 for condoning the delay of 1539 days in filing the petition under Order IX Rule 13 of Code of Civil Procedure to set aside the ex parte decree dated 24-07-1990. The said delay was sought to be condoned on the ground that on 24-07-1990 the petitioners could not send their clerk to their Counsel for payment of costs due to pressure of work in their office, and their Counsel also could not represent before the Court. The petitioners came to know about the ex parte decree only when notices in E.P. were served. Immediately serious attempts were made to trace out the records in their office in order to prepare the written statement to file along with petition under Order IX Rule 13 C.P.C. Due to communication gap and non-availability of records the said petition could not be filed in time. The application was filed on 7-11-1994. The said application was dismissed after examining the parties. During the course of enquiry it was deposed on behalf of the petitioners that due to bifurcation of districts records were misplaced and as a result of which the written statement could not be field in time. The witness on behalf of the petitioners further deposes that originally Vizianagaram District was part and parcel of Srikakulam District and the records relating to Vizianagaram District were misplaced at the time of its formation and records could not be traced and only when the records are traced out, they could file the said application. It was revealed in the cross-examination of the said witness that the petitioners/defendants had the knowledge of the decree even prior to 1994 but since records could not be traced out they did not choose to file a petition to set aside the ex parte decree. It was also admitted that only when execution petition seeking execution of the decree was filed they came to know about the said decree. In view of the above deposition the Court below has come to the conclusion that the defendants had the knowledge of the decree and the reason that records could not be traced out was not satisfactory and acceptable.