Yathamsetti Kattiah (died) per LRs v. Smt. Bakki Shanta

Smt. Bakki Shanta, W/o.Rajaiah, aged 70 years, Occ: household, R/o.H.No.37/3, LIG, APHC Colony, Hanumakonda, Warangal District … Respondent Order: This civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, is filed aggrieved of the order dated 07-03-2008 passed in I.A.No.575 of 2003 in I.A.No.1136 of 1998 in O.S.No.78 of 1971, by the learned Principal Senior Civil Judge, Warangal. By the aforesaid order, the court below rejected the application filed by the petitioners herein under Section 5 of Indian Limitation Act, 1963 to condone the delay of 1786 days in filing application to set-aside the final decree dated 16-07-1998 passed in I.A.No.1136 of 1988. The respondent herein was the applicant in I.A.No.1136 of 1988 for passing of final decree in a suit for partition, which was decreed in pursuance of judgment and decree 13-02-1978, in O.S.No.78 of 1971. In I.A.No.1136 of 1988, a commissioner was appointed after hearing the petitioner therein.

As there was no representation on behalf of the respondents therein and no objections were filed to the commissioner’s report, final decree was passed in I.A.No.1136 of 1988 on 16-07-1998. The petitioners herein were added as respondents 21 to 23 as per orders in I.A.No.485 of 1995 dated 15-02-1996. It is the case of the petitioners that they are the legal heirs of defendant No.2 and they alone are entitled to the share allotted to defendant No.2. It is stated that the will put forth by the respondent herein is fabricated one and based on the same she obtained final decree. On the aforesaid ground, they have filed application to set-aside the final decree passed in I.A.No.1136 of 1988 on 16-07-1998 and as there was delay of 1786 days, they filed application in I.A.No.575 of 2003 to condone the delay so caused. The court below dismissed the said application, by the impugned order. Hence, the present revision petition.

It is submitted by learned counsel for the petitioners that the petitioners have engaged one Mr.B. Chandramouleshwar Rao, Advocate, to appear on their behalf, but since he was sick and became old, he entrusted the matter to Mr.K. Veerabhadra Rao, Advocate. It is stated that the petitioners were enquiring about the status of the proceedings and were told that the matter is pending. It is further stated that suspecting the answers given by Mr.K. Veerabhadra Rao, the petitioners have approached another Advocate by name Mr.K. Venkatesh and on making verification in the month of June 2003, they came to know about the proceedings and the order passed and in view of the same delay is caused. In the instant case, delay of 1786 days in filing application to set-aside the final decree passed in I.A.No.1136 of 1988 is sought, to be condoned. At the outset, it is to be noted that the suit is of the year 1971.

Even according to the petitioners, they have engaged Mr.B. Chandramouleshwar Rao, Advocate, to appear on their behalf. Though it is submitted that he entrusted the matter on his own to Mr.K. Veerabhadra Rao, Adovcate, who did not inform the petitioners correctly about the stage of the proceedings, except the said bald and vague submission, there is no other material to show that the petitioners were diligent in pursuing the proceedings. It is also to be noted that nearly after five years of passing of the final decree, petitioners are seeking to set-aside the final decree without even showing plausible cause to condone abnormal and inordinate delay. Taking the averments in the affidavit as it is, the reasons, as stated by the petitioners, blaming their Advocate, by itself, do not constitute valid and sufficient reasons to condone the abnormal delay under Section 5 of Indian Limitation Act, 1963.

Having regard to the facts and circumstances and in view of the reasons recorded by the court below, in rejecting the application of the petitioners, I do not find any merit in this revision petition, which warrants interference under Section 115 of the Code of Civil Procedure, 1908. The civil revision petition is accordingly dismissed, however, in the circumstances, with no costs. _____________________ (R. SUBHASH REDDY, J) July 6, 2010 MRR