G.SRIRAMULU Vs. K.VENKATESHWAR

JUDGEMENT

(1.) The revision petition is directed against the order dtd. 8/9/2017 passed in I.A.No.151 of 2017 in I.A.No.353 of 2008 in O.S.No.1311 of 1999 on the file of the learned I Senior Civil Judge, City Civil Court, Hyderabad.

(2.) Mr.M.Amarnath-plaintiff-second respondent herein filed suit in O.S.No.1311 of 1999 against Mr.G.Sriramulu-petitioner-defendant herein seeking specific performance of the agreement of sale and a direction to the defendant to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration. The petitioner herein filed an application in I.A.No.151 of 2017 in I.A.No.353 of 2008 under Sec. 5 of the Limitation Act, 1963 seeking to condone the delay of 188 days in filing a petition to set aside the order dtd. 12/12/2008 passed in I.A.No.353 of 2008 stating that due to medical and financial problems he along with his family were struggling for existence, he left Hyderabad in search of employment and as such he was unable to defend and give instructions to his counsel and thus an ex parte decree was passed and in his absence his wife through his General Power of Attorney got settled all the cases except the present one. On 29/9/2011 he filed an application to set aside the ex parte decree dtd. 26/11/2005 along with delay petition through his GPA holder vide I.A.No.1740 of 2011 in O.S.No.1311 of 1999. As he could not pay the fees, he was compelled to take on objection vakalat from Mr.B.Shankar, Advocate, and engaged another counsel. Later in E.P.No.71 of 2010 Mr.B.Shankar, Advocate, was engaged on 11/8/2016 after improving his financial status and came to know that the deed of assignment was executed on 24/9/2007 in favour of first respondent herein vide order in I.A.No.363 of 2008 in O.S.No.1311 of 1999. The petitioner herein would assert that as per Order 21 Rule 16 CPC, notice to the judgment debtor is mandatory. He obtained certified copies of the assignment deed, notice, memo and docket orders passed in I.A.No.353 of 2008 in the suit on 23/8/2016. As he was working in marketing line and was not in Hyderabad, he was unable to give instructions to file set aside petition against the orders dtd. 12/12/2008 passed in I.A.No.353 of 2008 immediately. He extracted the docket proceedings and stated that on 18/7/2008 notice was issued to the counsel on record i.e., Mr.K.Jagathpal Reddy, Advocate, and he filed a memo dtd. 23/11/2005 stating that he reported no instructions from the defendant. But the trial Court observed that notice was given to the counsel on record to the effect that 'Memo filed by the Defendant Counsel reported no instruction from the Defendant, hence for the Judgment call on 25/11/2005' and made an endorsement to send notice to the party, it was not served upon him and as such he requested the Court to condone the delay.

(3.) In a counter filed by the first respondent, he stated that I.A.No.1740 of 2011 was filed to condone the delay of 2124 days to set aside the decree, but it was dismissed on 18/4/2016 with costs of Rs.2003.00. Against which the petitioner herein filed C.R.P.No.3263 of 2016 before this Court and it was dismissed on 20/9/2016. He would further assert that the present application is filed only to thwart the due process of law and it amounts to estoppel and also barred as constructive res judicata under Sec. 11 CPC. I.A.No.1740 of 2011 is filed in September 2011 and thus the petitioner has knowledge of the order passed on 21/9/2011 in I.A.No.353 of 2008 and as such calculating the period from 11/8/2016 is not maintainable and he has not explained the reasons for the inordinate delay of 1800 days in filing the present application. He would also assert that the petitioner herein is in the habit of changing the Advocates. He initially he engaged Mr.Jagathpal Reddy, Advocate, to prosecute the suit and then he appointed one Mr.B.Shankar, Advocate, for filing I.A.No.1740 of 2011 and thereafter taken no objection from him and engaged Mr.Shaik Iqbal Pahsa, Advocate, to contest the application. After dismissal of the application, the petitioner once again taken no objection from Mr.Shaik Iqbal Pasha, Advocate, and engaged Mr.B.Shankar in filing the present application. The petitioner appointed his son and wife as power of attorney holders to represent certain other matters. He would also submit that the allegation made by the petitioner that creation of assignment deed is false, whereas it is a registered one and is a public document available for general public. The petitioner has to explain the inordinate delay in filing the present application from 2011 to 2016 i.e. more than five years, instead, he simply stated that he went to USA and could not follow up the matter.