THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.1199 of 2011 Dated:29.07.2011 Between: Makasi Basava Raju, And another. …Petitioners and Chelimi Vannurappa, And others. …Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.1199 of 2011 ORDER: The order of the learned Junior Civil Judge, Rayadurg, in I.A.No.496 of 2010 in O.S.No.36 of 2009 refusing to condone the delay of 218 days in filing the petition under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex parte decree in O.S.No.36 of 2009 dated 06.07.2009, is under challenge. It is the case of the petitioners herein (who are defendant Nos.1 to 3 in the suit) that no notice was served on them in O.S.No.36 of 2009; an ex parte decree was passed on 06.07.2009; they were suffering from ill health and they were residing at Bellary from 01.08.2009 to 10.12.2009; they did not receive Court summons; and it is only after Execution Petition notices were served on them, they came to know about the ex parte decree against them in O.S.No.36 of 2009. The factum of the suit being decreed ex parte is not in dispute. The respondents herein contested the Interlocutory Application on the ground that the petitioners did not adduce documentary evidence regarding their having shifted residence to Bellary and that they were unwell. The Court below relying on the judgment of the Supreme Court in Vedabai v Shantaram Baburao Patil[1] held that each day’s delay was required to be explained and in the absence of documentary proof of being shifted to Bellary and suffering from ill health, the delay cannot be condoned. Notice before admission was ordered in this Civil Revision Petition, and despite notices being served nearly two months ago, no Counsel has entered appearance on behalf of the respondents. While it is no doubt true that in an application filed under Section 5 of the Limitation Act, 1963, if is for the applicant to satisfy the Court regarding the delay in filing the application, the Court below has not adverted to the fact that the suit was decreed ex parte and that the petitioners herein were denied an opportunity of contesting the suit on merits. It is the petitioners’ specific case that only after notices in the Execution Petition were served on them that they came to know that the suit had been decreed ex parte. This fact is also not disputed either by the respondents before the Court below nor has the Court below recorded a finding to the contrary. I consider it appropriate, therefore, to condone the delay in filing the application to set aside the ex parte decree to enable the petitioners to contest the suit on merits on condition of the petitioners depositing costs of Rs.1,500/- (Rupees one thousand five hundred only) before the Court below within a period of two weeks from today, and thereafter the Court below shall pass orders on the application filed to set aside the ex parte decree. Each of the respondent Nos.1 to 3 shall be permitted to withdraw Rs.500/- (Rupees five hundred only) each from the amount deposited by the petitioners. The Civil Revision Petition is disposed of accordingly. ________________________________________ (RAMESH RANGANATHAN, J) 29.07.2011 Note: Issue C.C in one week. B/o. vs [1] AIR 2001 SC 2582