THE HONOURABLE SRI JUSTICE N.V. RAMANA Civil Revision Petition No.3284 of 2010 ORDER: This civil revision petition, under Section 115 of the Code of Civil Procedure, is directed against the order dated 20.02.2010 passed in I.A. No. 1023 of 2009 in O.S. No. 144 of 2005 by the learned Senior Civil Judge, Vikarabad, dismissing the application filed by the petitioners herein, defendants in the suit, seeking to condone the delay of 221 days in filing the petition to set aside the ex parte preliminary decree dated 11.12.2008 passed in the said suit filed for partition and separate possession of the suit schedule properties. Learned counsel for the petitioners submits that the decree passed by the Court below is an ex parte decree and as such the Court below ought to have condoned the delay and set aside the ex parte decree and it committed an error in dismissing the present application filed by the petitioner for the said purpose, holding that the decree is not an ex parte decree, but is an order passed on merits. Heard the learned counsel for the petitioners and perused the order under revision. Though the petitioners contend that the decree passed in the suit is an ex parte decree, but as can be seen from the order under revision, respondents herein laid the suit in O.S. No. 144 of 2005 on the file of the Senior Civil Judge’s Court, Vikarabad, for partition of suit schedule properties and separate possession of 1/4t h share each to them as plaintiffs and petitioner No.1 herein as defendant No.1. Petitioners herein, defendants in the suit, filed their written statement, resisting the claim of the plaintiffs and they sought dismissal of the suit. After the trial Court framed the issues for consideration based on the respective pleadings of the parties, the trial commenced and P.Ws.1 and 2 were examined on behalf of the plaintiffs and Exs.A1 to A3 were marked, and since the defendants did not choose to cross- examine P.Ws.1 and 2, their evidence was closed. The defendants even did not adduce evidence on their behalf and thereafter when the matter came up for arguments, the counsel for the plaintiffs advanced arguments, but there was no representation on behalf of the defendants. The trial Court, thus, having heard the counsel for the plaintiffs and taking into consideration the written statement filed by the petitioners-defendants, passed a preliminary decree, particularly, when the evidence of the respondents-plaintiffs remained unchallenged in view of their non-cross-examination by the petitioners- defendants. When the defendants filed written statement contesting the suit by engaging an Advocate, it is for them to be diligent in prosecuting the case by getting in touch with their Advocate from time to time. In spite of granting adjournments, the petitioners-defendants have neither chosen to cross-examine the witnesses of the respondents-plaintiffs nor tendered their evidence, and in those circumstances, the Court below, based on the material available on record, and taking into consideration the written statement filed by the petitioners-defendants, passed judgment and decree in the suit on merits. Admittedly, the present application, praying to set aside the alleged ex parte decree, is filed with a delay of 223 days. Except stating that petitioner No.1 was suffering from paralysis and that petitioner No.2 entrusted the matter to him to defend the case, the petitioners have not explained the delay properly, and no medical certificate is produced to show that petitioner No.1 was suffering from paralysis. The fact that petitioner No.1 was suffering from paralysis is belied from the conduct of the petitioners themselves, which can well be demonstrated from the fact that when the respondents-plaintiffs, filed E.P. for executing the decree, the petitioners having received notice in the E.P., entered their appearance through Advocate and sought time to file counter, and instead of filing counter, filed the present application. In the absence of the petitioners not explaining the delay properly, much less each day’s delay and considering the fact that the decree passed by the Court below is not an ex parte decree, but a judgment and decree order passed on merits, based on the written statement filed by the petitioners-defendants, and considering the conduct of the petitioners-defendants, I am of the considered opinion that no indulgence need be shown by this Court by interfering with the order under revision, passed by the Court below refusing to condone the delay in filing the present application to set aside the alleged ex parte decree, particularly when the judgment and decree passed by the Court below is not an ex parte decree, but a decree passed on merits. Reliance placed by the learned counsel for the petitioners on the judgment of the apex Court in B. Janakiramaiah Chetty and A.K. Parthasarathi[1], does not assist the petitioners in any manner, because in the said case, the trial Court after stating the prayer, and mentioning about filing of written statement by the defendant, re-stating the issues framed, passed an ex parte decree, which read thus: “D1 to D3 called absent. No representation for the defendants. Suit is decreed with costs together with interest at 6% per annum from the date of suit till realization.” In such circumstances, the apex Court held that the above decree passed by the trial Court had imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested. But that is not the case on hand, for in the instant case, the Court below, passed by the decree on merits by referring to the contents of the written statement filed by the defendants, as also by discussing the evidence adduced by the plaintiffs, which remain unchallenged by the defendants either by cross-examining or by tendering their evidence. Reliance placed by the learned counsel for the petitioners on the judgment of this Court in Mekala Ramasubbaiah v. Potula Yesepu[2], also will not assist the petitioners because, in the said case, immediately after passing the ex parte decree, the defendants therein filed the application to set aside, but in the instant case, there is long delay of 221 days in filing the application to set aside the alleged ex parte decree. Be that as it may, the petitioners, in the passing of the order under revision by the Court below, refusing to condone the delay in filing the application to set aside the decree, have failed to point out that the Court below had exercised the jurisdiction not vested it in by law, failed to have exercised the jurisdiction so vested or acted illegally or with material irregularity in exercise of its jurisdiction, warranting interference by this Court in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure. The civil revision petition is therefore dismissed. No order as to costs. __________________ JUSTICE N.V. RAMANA 20th October, 2010 IBL [1] AIR 2003 SC 3527 [2] 2008 (5) ALD 333