THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.2274 OF 2009 15-07-2010 Between: S.Vasundhara wife of Radhakrishna ..petitioner Vs. Bh.Rama Devi wife of Venkata Rao andothers …Respondents. THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.2274 OF 2009 ORAL ORDER Notice before admission was ordered on this revision on 23- 10-2009. As notice could not be served on the respondents despite several adjournments, the revision petitioner filed an application for serving the notice by publication in newspapers. The application was ordered on 29-01-2010 and proof of publication has also been filed into Court under a memo by the counsel dated 16-04-2010. The revision is directed against the order of the learned Additional Senior Civil Judge, Ongole dated 09-03-2009 rejecting I.A.No.796 of 2006 filed by the petitioner-the 3rd defendant in O.S.No.278 of 2002 under Section 5 of the Limitation Act, 1963, seeking condonation of a delay of 1217 days in filing an application to set aside the ex parte preliminary decree dated 10-03-2003 passed in the suit. In the affidavit filed in support of the application, the petitioner pleaded that she had initially engaged one Metla Venkata Subbaiah, Advocate who undertook to intimate her when her presence was required but he did not do so. When she received notice of final decree proceedings, she engaged another counsel Rama Murthy to defend her case. Rama Murthy also did not inform her about the preliminary decree. Later, she engaged another counsel who was also not able to prosecute the case due to heart ailment. Then she engaged the present counsel. Due to his efforts, she came to learn that she was set ex parte on 07-03-2003 and an ex parte decree was passed on 10-03-2003. According to the petitioner, the first counsel Metla Venkata Subbaiah suffered paralysis and therefore did not pursue the matter; the second counsel did not go through the records and failed to advise her to file an application for setting aside the ex parte decree. In the affidavit, the petitioner undertook to file a written statement. She also pleaded that since she was residing at Visakhapatnam, at a far distance, she was unable to prosecute her case in Ongole diligently. In the circumstances, she sought condonation of delay of 1217 days. The court below rejected the application by recording that the petitioner had admitted receipt of the notice in the final decree proceedings for partition of the properties; that the Court Commissioner had visited the schedule properties after giving notice to both parties; the respondent/plaintiff had filed an application I.A.No.1577 of 2004 under Section 2 of the Partition Act for sale of the property and the petitioner contested this application on 14-09-2004 by engaging a counsel and that application was disposed of on 01-12-2005; the petitioner through the present counsel earlier filed I.A.No.1919 of 2006 for setting aside the ex parte decree and therefore the petitioner was aware about the ex parte preliminary decree even by the time she received the notice in a final decree proceedings in 2004 but failed to file any application for setting aside the ex parte decree, in time. The plea that she ‘recently’ came to learn about the passing of the preliminary decree is an untrue statement, observed by the court below and rejected the application for condonation of a delay of 1217 days in filing an application under Order IX Rule 13 CPC. This court discerns no error either in the application of law or the exercise of discretion by the court below warranting interference in this revision under Section 115 CPC. The conduct of the petitioner has been grossly negligent and the negligence of the successive counsel for the petitioner if any cannot prejudice the plaintiff and the other parties in the matter of interminably protracting a suit for partition which was filed by the 1st respondent herein. The suit is pending for eight years now and a preliminary decree was passed in 2003. It is only in 2006 that the application for setting aside the ex parte preliminary decree was filed by the petitioner along with an application for condonation of delay, despite knowledge of the passing of a preliminary decree, as is clear by her participation in the final decree proceedings. The persistent negligence in prosecuting her cause and the delay of 1217 days has not been properly explained. On the aforesaid analysis, the revision is dismissed. No order as to costs. ________________ GODA RAGHURAM,J 15th JULY 2010 TSNR