LANKAMALLA RAJYA LAXMI Vs. VOONA SURYA RAO

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 17/2/2023 (Annexure-1) passed by learned District Judge, Rayagada in F.A.O. No.5 of 2018 is under challenge in this CMP, whereby dismissing the appeal, it confirmed the order dtd. 6/8/2014 (Annexure-2) passed by learned Senior Civil Judge, Rayagada in C.M.A. No.8 of 2014 (arising out of C.M.A. No.33 of 2012) dismissing an application under Sec. 151 CPC.

(3.) Mr. Dash, learned counsel for the Petitioner submits that C.S. No.59 of 2010 was filed by the Opposite Party for specific performance of contract. The suit was decreed ex parte vide judgment dtd. 7/3/2011 directing the Defendant- Petitioner to execute the sale deed in favour of the PlaintiffOpposite Party by accepting the balance consideration amount. For non-compliance of the said order, Execution Case No.4 of 2011 was filed by the Plaintiff-Opposite Party on 17/5/2011. The Defendant-Petitioner on receipt of notice in Execution Case No.4 of 2011 came to know about the ex parte decree passed in C.S. No.59 of 2010 and filed an application in C.M.A. No.33 of 2012 under Order IX Rule 13 CPC. The said application was filed on 12/4/2012. But, unfortunately, C.M.A. No.33 of 2012 was dismissed for default on 18/2/2014. On 3/3/2014, learned counsel appearing on behalf of the Petitioner filed an application under Sec. 151 CPC to recall the order of dismissal of C.M.A. No.33 of 2012. The said application was rejected on 6/8/2014 on contest. Assailing the same, the Petitioner filed F.A.O. No.5 of 2018. Since the appeal was filed after the statutory period, the Petitioner also filed an application for condonation of delay. Learned appellate Court finding a prima facie case in favour of the Petitioner, condone the delay by imposing cost. The cost so imposed was also paid to the Opposite Party. However, upon hearing learned counsel for the parties, learned appellate Court refused to admit the F.A.O. and dismissed it by order dtd. 17/2/2023. Hence, this CMP has been filed assailing the said order.