Korrapati Paul v. Subsequently

HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1774 OF 2010 ORDER: This civil revision petition is directed against the order dated 06.02.2010 in I.A.No.159 of 2009 in O.S.No.124 of 2007, on the file of the Junior Civil Judge, Chintalapudi, West Godavari District, wherein the said application filed by petitioner No.1 herein (defendant No.1) under Section 5 of the Limitation Act seeking to condone the delay of 243 days in filing the application under Order IX Rule 13 CPC for setting aside the ex parte decree, was dismissed.

Heard both sides. Perused the record.

The respondent No.1 herein filed the suit for partition of the property based on a Will. The petitioner herein and two others entered appearance but did not file written statement. The suit was thereafter decreed ex parte. According to the defendants, the Will propounded by the plaintiff is false and they could not, however, the written statement. Subsequently, defendant No.1 filed I.A.No.159 of 2009 for setting aside the ex parte decree. As there was a delay of 243 days in filing the said application, D-1 filed I.A.No.159 of 2009 under Section 5 of the Limitation Act for condonation of the said delay. Though the impugned order shows in the cause title the names of all the three defendants, figuring as three petitioners, the learned counsel for the petitioner would submit that the application was, in fact, filed only by the 1st respondent, but not by D-2 and D-3 and they remained ex parte. According to D-1, he was bed ridden on account of diahorrea and, therefore, he could not move out of the house. He also produced a medical certificate in support of the said plea showing that he was treated as outpatient

20.12.2007 to 20.02.2008. The trial Court dismissed the application on the ground that the contents of the medical certificate are inconsistent with the plea of D-1 that he was bed ridden. D-1 nowhere stated that he was admitted in any hospital, but merely pleaded that he was bed ridden. There is every possibility of the 1st defendant taking treatment as outpatient and still being bed ridden in the house if not in the hospital.

Be that as it may, having regard to the fact that the suit relates to immoveable property and the relief sought for is one for partition, based on a Will, the truth of which is seriously disputed by the 1st defendant, it is considered that an opportunity be given to the 1st defendant to contest the matter so that the suit can be disposed of on merits as it involves adjudication of valuable rights of the parties in the immoveable property. In that view of the matter, it is held that the delay of 243 days in filing the application to set aside the ex parte decree can be condoned and the same is accordingly condoned, subject to payment of costs of Rs.1,000/- (Rupees one thousand only) by the petitioner/D-1 to the respondent/ plaintiff within a period of two weeks from the date of receipt of a copy of this order. In default of payment of costs, as directed, the impugned order, dismissing the application, stands confirmed.