IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4044 OF 2007 Between:- Valluri Veera Venkata Satyanarayana …Petitioner A n d Valluri Deepti …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4044 OF 2007 ORDER: This civil revision petition is directed against the order dated 28-06-2007 in I.A.No.144 of 2007 in O.P.No.27 of 2006, on the file of the Senior Civil Judge, Ramachandrapuram, wherein the said application filed by the petitioner herein under Section 5 of the Limitation Act for condonation of delay of 64 days in filing the petition under Order IX Rule 13 CPC, was dismissed. 2. Heard the learned counsel for the petitioner. None appeared for the respondent. Perused the records. 3. The respondent herein is the wife of the petitioner. She filed O.P.No.27 of 2006 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Notice of the said petition was ordered to be served on the petitioner herein. The petitioner was served with notice on 01-07-2006, but by then the hearing date of 09-06-2006 was over. As seen from the impugned order, a fresh notice was directed to be issued returnable by 28-07-2006. As the petitioner did not appear before the Court on 28-07-2006, having received the notice on 01-07-2006, he was set ex parte and an ex parte decree was passed in the O.P. The petitioner subsequently filed an application under Order IX Rule 13 C.P.C for setting aside the ex parte decree. As there was a delay of 64 days in filing the said petition, the petitioner filed I.A.No.144 of 2007 under Section 5 of the Limitation Act for condoning the said delay. The learned Senior Civil Judge dismissed the said application observing that the petitioner having received the notice on 01-07-2006 ought to have enquired about the adjournment and attended the Court. 4. It is to be noted that though the petitioner was served with notice on 01-07-2006 the date of hearing i.e., 09-06-2006 was already over and the Court, in fact, ordered a fresh notice also. It is stated that the second notice was not served on the petitioner. Under those circumstances, the petitioner’s failure to attend the Court on 28-07-2006 requires to be considered objectively. 5. It is not disputed that the petitioner has filed O.P for divorce agianst the respondent and the respondent filed M.C.No.8 of 2006 claiming maintenance and both the cases are pending. The observation of the learned Senior Civil Judge that since the petitioner filed divorce O.P., there is no need to set aside the decree for restitution of conjugal rights, is unwarranted. So long as the decree for the restitution of conjugal rights, which is passed ex parte, is not set aside, the same will be staring at the petitioner and will be binding on him. As the petitioner has duly explained that he could not attend the Court because he received the notices long subsequent to the date of hearing and was hoping to receive the further notice which he did not receive and having regard to the fact that the delay in filing the application under Order IX Rule 13 CPC is not enormous but is only 64 days, it is considered that the same can be condoned subject to imposition of costs. 6. In the circumstances, the delay of 64 days in filing the application under Order IX Rule 13 CPC is condoned on the petitioner paying costs of Rs.500/- to the respondent within a period of two weeks from the date of receipt of a copy of this order and on such payment, I.A.No.144 of 2007 stands allowed. The Court below shall dispose of the main I.A filed under Order IX Rule 13 CPC without in any way being influenced by any of the observations made hereinabove. 7. In the result, the civil revision petition is disposed of. There shall be no order as to costs. Interim order of stay granted on 20-09-2007 stands vacated. ____________________ G.V.SEETHAPATHY, J 01st July, 2010. Lrkm.