Chittari Sreenivasa Varma v. Chittari Venkata Lakshmi

This Civil Revision Petition is filed challenging the order dated

16.07.2009 in CFR No.3134/2008 in O.S. No.166 of 2006 on the file of the Junior Civil Judge, Pattikonda, Kurnool district, whereunder and whereby the application filed by

the petitioner/defendant under Section 5 of the Limitation Act, 1963 (for short, ‘the Act, 1963’) to condone delay of 48 days in filing the petition to set aside ex parte decree dated 2.1.2007 passed in the suit, was dismissed.

Inspite of posting the matter under the caption ‘for dismissal’, none appears for the respondent. Heard the learned counsel for the petitioner.

The petitioner herein is the defendant in the suit. He filed the present application to condone delay of 48 days in filing the petition to set aside the ex parte decree dated

2.1.2007 passed in the suit, on the ground that he had no knowledge about the suit proceedings and he came to know about the same after sale notice was ordered on

7.8.2008 and immediately thereafter the present application is filed.

The word ‘sufficient casue’ in Section 5 of the Act, 1963 has not been defined. But, it must mean, a cause which is beyond the control of the party invoking the aid of the Section. The reason given by the petitioner is that he came to know about the passing of the ex parte decree on 7.8.2008. It is the contention of the learned counsel for the petitioner that suit summons was served to wrong address, and as a matter of fact, the Bailiff also returned the summons to the Court stating that the petitioner/defendant was not residing in the village, but, however, substituted service was ordered against the defendant through paper publication and thereupon the petitioner/defendant was set ex parte in the suit. It is not shown that the defendant was evading to receive the summons so as to order substituted service under Order V Rule 20 CPC. When the defendant was not admittedly residing in the address given in the plaint, it cannot be attributed that he was having knowledge about the pendency of the suit. Therefore, there is some force in the contention that the defendant came to know about the passing of the decree only after filing of the execution proceedings to realize the decreetal amount by way of sale of schedule property and that appears to be correct. So, a proper and plausible explanation has been given by the defendant to condone the delay of 48 days. This aspect of the case has not been considered by the trial court. Hence, the impugned order is liable to be set aside.

However, it is made clear that the ex parte decree can be set aside only after the petitioner/defendant depositing 50% of the decreetal amount together with costs and interest within a period of six weeks from today, failing which the impugned order of the trial court shall be given effect to. It is stated that the petitioner deposited 1/3rd of the decreetal amount in pursuance of the interim order of this court. If that is so, the petitioner shall deposit the remaining amount together with costs and interest.

With the above direction, the Civil Revision Petition is allowed. No costs. --------------------- (K.C.Bhanu, J.)

21.2.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 4177 of 2009

21.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 4177 of 2009

21.2.2011 Between: Chittari Sreenivasa Varma And …Petitioner Chittari Venkata Lakshmi …Respondent