THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL REVISION PETITION No.2917 of 2010 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against order dated 29.04.2010 passed in I.A.No.275 of 2009 in O.S.No.101 of 2007 on the file of the learned Senior Civil Judge, Kovur, S.P.S.R Nellore District, whereunder the application filed under Order IX Rule 13 of CPC to set aside the ex parte decree dated 26.03.2008 was allowed. Petitioner herein is the plaintiff and respondent herein is the 1st defendant in the suit being O.S.No.101 of 2007 on the file of the learned Senior Civil Judge, Kovur, filed for specific performance of the agreement of sale dated 03.09.2003, and the same was decreed ex parte on 26.03.2008 and thereafter E.P. was filed. At that stage, the present application being I.A.No.275 of 2009 was filed in the said suit under Order IX Rule 13 of C.P.C. to set aside the ex parte decree dated 26.03.2008 passed in the said suit. It was the case of the 1st defendant, before the Court below, that the plaintiff obtained ex parte decree against him without serving any notice on him; that he has been residing at Chennai but is not the resident of D.No.24/1469, Sujathamma colony near Krishnamandiram, Nellore; that the address given in the plaint is false; that he came to know about passing of the ex parte decree and also filing of the E.P. just one day before filing of the present application; that he has not executed any agreement of sale in favour of the plaintiff; that the process server not visited him; that the suit is a collusive one between the plaintiff and defendants 2 to 4 and that there is no willful negligence on his part. It was the case of the plaintiff, before the Court below, that the 1st defendant and others have executed an agreement of sale and that the present application is not maintainable, as the same has been filed beyond the period of limitation. The Court below, after detailed consideration of the matter, observed as under: “The contention of the petitioner is that no summon was served on him. I have gone through the court records and suit summons sent through Process Server and also through RP. The R.P. was not served on the defendant. A blank postal acknowledgment was returned and basing on it, the defendant was set ex parte. So it is clear that no summon was served on defendant by way of R.P. Through court also not served. Since the summon was not served on the defendant, it can be said that the defendant has no knowledge about filing of this suit. It is not the contention of the plaintiff in this suit that the suit summon was served on the defendant. However, his main objection is that as no separate application is filed to condone the delay as this application is filed beyond 30 days the present application is not maintainable. Admittedly this application is filed beyond 30 days from the date of passing of the decree. In normal circumstances, Section 5 application is not required unless the application is filed beyond 30 days. But Article-123 of Limitation Act says as follows:- Description of application Period of limitation Time from which period begins to run 123: To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Thirty days The date of the decree or where t h e summons or notice was not duly served, when the applicant had knowledge of the decree It is clear that if the defendant has no knowledge about passing of decree, the period of limitation would not start from the date of decree and it would be started from the date of knowledge only. In the affidavit, it is categorically stated that one day prior to filing this petition only, he came to know about passing of this ex parte decree. Under the above circumstances, I see no application to condone the delay is necessary. More over in the decision reported in 2002(6) ALD 473 in between M.Narasimha Reddy and others Vs.Begari Samuel, his Lordships observed that when the allegations in the affidavit filed in support of the application to set aside the exparte decree and those in support of the application for condonation of delay in support of the application for condonation of delay are the same, no separate application u/s.5 of Limitation Act need be filed. In view of the above circumstances, there are sufficient grounds to set aside the exparte decree.” Having recorded the aforesaid findings, the Court below allowed the present application, by the impugned order dated 29.04.2010. Heard the learned counsel and perused the impugned order and other material made available on record. The contention of the learned counsel for the petitioner that the sale deed was executed in favour of the petitioner-plaintiff is denied by the learned counsel for the respondent, and it is stated that only the stamp papers were submitted to the Registrar’s office and the document is not registered. Be that as it may, the Court below categorically found that the Registered Post was not served on the 1st defendant and a blank postal acknowledgement was returned and, basing on it, defendant No.1 was set ex parte. From this, it is clear that no summon was served on the 1st defendant by way of Registered post, and through court also, no notice was served to him and, as such, it can be said that the 1st defendant has no knowledge about filing of the suit. Further, it is interesting to notice from the impugned order that the objection of the plaintiff was not that the suit summons was served on the 1st defendant, but his objection was that the 1st defendant has not filed any separate application, under Section 5 of the Limitation Act, to condone the delay in filing the present application. Therefore, so far as delay is concerned, the Court below held that no application to condone the delay is necessary, since the present application was filed from the date of knowledge about passing of the decree, and thus I am of the considered opinion that the Court below has not committed any error warranting interference of this Court under Article 227 of the Constitution of India and the Civil Revision Petition is devoid of merits and is liable to be dismissed. The Civil Revision Petition is, accordingly, dismissed. However, the Court below is directed to dispose of the suit in O.S.No.101 of 2007 as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. No order as to costs. _____________ C.V.RAMULU,J 27.09.2010 v v