IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SIXTH DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.640 of 2009 Between: Shoba Devi .. Revision Petitioner AND V. Parvathamma & 3 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.640 of 2009 ORDER: The Civil Revision Petition is directed against the order, dated 27.08.2008, in I.A.No.415 of 2007 in O.S.No.2 of 2002, on the file of the Junior Civil Judge’s Court, Gadwal. 2. I.A.No.415 of 2007 was filed by the defendants in O.S.No.2 of 2002 under Section 5 of the Limitation Act, 1963, to condone the delay of 806 days in preferring an application for setting aside the ex parte final decree. The defendants contended that in the suit for partition, the husband of the second petitioner took the initiative to engage an Advocate through a retired teacher and they claimed that they were under the impression that their case was being represented before the trial Court. A n ex parte preliminary decree was passed on 25.10.2002 in the absence of any representation on their behalf and the plaintiffs filed I.A.No.38 of 2003 for passing a final decree and I.A.No.39 of 2003 for appointment of an Advocate Commissioner for the purpose and on the report of the Court Commissioner, a final decree came to be passed. It was only later that the defendants came to know that they were unrepresented and then they got I.A.No.54 of 2006 filed to condone the delay in filing the petition to set aside the ex parte preliminary decree. That petition was dismissed on merits by the trial Court on 29.08.2006 and C.R.P.No.6308 of 2006 against the same was dismissed on 22.01.2007 permitting the defendants to work out an appropriate remedy before the trial Court. Therefore, the defendants desire that the delay in filing the petition to set aside the final decree to a tune of 806 days be condoned. They also incidentally claimed that the final decree allotting the entire land of Survey No.666 was causing loss to them. 3. The plaintiffs opposed the application alleging that the preliminary decree was passed on 25.10.2002 and in the final decree proceedings, an Advocate Commissioner was appointed as the defendants did not turn up in spite of the repeated notices and on his report, a final decree was passed on 27.06.2005. The petition to condone the delay in filing the petition to set aside the preliminary decree was dismissed on 29.08.2006 and the civil revision petition against the same was dismissed on 22.01.2007. The defendants cannot attribute any motives and make allegations against their own counsel without any basis and as they approached the Court with unclean hands without any explanation for the delay, the petition be dismissed. 4. On such pleadings, the trial Court passed the impugned order firstly referring to the factual background for the petition and then observing that the allegations against the previous counsel of the petitioners/defendants were baseless and cannot be considered. Still, the trial Court went on to consider that final decree allotting an extent of Ac. 7.21 guntas to the plaintiffs in Survey No.666 is beyond the suit claim in which the plaintiffs sought for only 1/5th share to each of them out of Ac. 15.23 guntas. The trial Court also observed that there was nothing in the final decree showing the shares allotted to the petitioners/defendants and the remaining suit survey numbers were not even referred to in the final decree. The trial Court, therefore, felt that the defendants were deprived of their legitimate rights by the inequitable final decree and, therefore, on that ground, the defective final decree which did not determine the rights and shares of the parties finally, has to be set aside and consequently, the petition was allowed condoning the delay of 806 days. 5. The first plaintiff/revision petitioner challenged the said order in this civil revision petition firstly contending that the inordinate delay in filing the petition was never explained and the trial Court could not have gone into the merits of the impugned final decree petition, more so, when the final decree was passed and engrossed on non-judicial stamp. The allotment of properties under the final decree could not have been observed to be inequitable by the trial Court in this application and the consideration could have been restricted only to the existence of any sufficient reason to condone the long delay. Therefore, the first plaintiff/revision petitioner desired the impugned order to be reversed. 6. Heard Sri R.V. Prasad, learned counsel for the revision petitioner and Sri M. Achuta Reddy, learned counsel for respondents 1 to 3. None entered appearance on behalf of the 4th respondent/second plaintiff. 7. The point for consideration is whether the impugned order is sustainable in law. 8. The factual background leading to the impugned order is not in dispute. The plaintiffs filed a suit for partition and separate possession of their 1/5th share in the suit lands and the defendants entered appearance in the suit through their counsel. A preliminary decree was passed on 25.10.2002 in the absence of any representation for the defendants and again a petition for final decree was filed in I.A.No.38 of 2003 along with I.A.No.39 of 2003 for appointment of an Advocate Commissioner to suggest partition. The defendants did not contest the final decree proceedings also in spite of notices and ultimately, a final decree was passed on 27.06.2005. It was at that stage that the defendants filed I.A.No.54 of 2006 in O.S.No.2 of 2002 to condone the delay of 236 days in filing the application to set aside the ex parte preliminary decree in the suit. The said application was dismissed on merits holding that the defendants were unable to explain the delay. Against the said order, C.R.P.No.6308 of 2006 was preferred during the hearing of which, it was noted that a final decree was already passed on a separate application and an application to set aside the preliminary decree cannot be maintained since it merged in the final decree. Therefore, the learned Judge dismissed the civil revision petition stating that the remedy of the defendants is not through an application to set aside an ex parte preliminary decree but elsewhere and the learned Judge kept it open for the defendants to pursue any appropriate remedy available under law. After the dismissal of the civil revision petition on 22.01.2007, this application was filed in September, 2007, to condone the delay of 806 days in preferring the application for setting aside the ex parte final decree. The affidavit in support of the application, while narrating the events that led to the filing of the petition, did not explain as to why the petition to set aside the ex parte final decree could not be filed earlier and significantly, there was no explanation at least for the delay in filing such petition from the date of dismissal of C.R.P.No.6308 of 2006 till the filing of the petition. The petition was opposed by the plaintiffs leading to the impugned order. 9. Sri R.V. Prasad, learned counsel for the revision petitioner has rightly referred to Section 97 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), wherein it was specifically laid down that where any party aggrieved by a preliminary decree passed after the commencement of C.P.C does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree and, therefore, the defendants could not have challenged the correctness of the preliminary decree without an appeal against the preliminary decree. That apart, it is also seen that the affidavit in support of the present petition did not refer to any efforts made by the defendants themselves to contact the counsel engaged by them to defend them in the suit and how they came to know subsequently about the passing of the ex parte preliminary decree or the ex parte final decree. The finding in I.A.No.54 of 2006 that the delay in filing the petition to set aside the ex parte preliminary decree to a tune of 236 days was not explained, had become final by the confirmation of the order in C.R.P.No.6308 of 2006 and while even that delay, thus, stood totally unexplained, the affidavit in support of the application did not state as to why the defendants could not enter their appearance in I.A.No.38 of 2003 and I.A.No.39 of 2003. It is not even claimed that the Advocate Commissioner has not given notice before executing the warrant of commission and the copy of the Advocate Commissioner’s report filed herein showed that the Advocate Commissioner had executed the warrant of commission with notice to everybody concerned. Even otherwise, the defendants had informed all the facts to their counsel who filed I.A.No.54 of 2006 even by which time, the final decree came to be passed on 27.06.2005 and even after the dismissal of I.A.No.54 of 2006 or C.R.P.No.6308 of 2006, the defendants obviously did not take any action to have a petition filed to set aside the final decree or to get the delay in filing such a petition condoned till the filing of the present petition, irrespective of the question whether such a petition is, in fact, maintainable or not, as contended by Sri R.V. Prasad, learned counsel for the revision petitioner. 10. In spite of the total non-explanation for the delay in filing the petition to set aside the final decree either to the total extent of 806 days or at least in part, the trial Court in the impugned order, while holding that the allegations made against the earlier counsel were baseless, went on to consider the merits of the final decree passed earlier by his predecessor. The opinion of the trial Court that the final decree in the manner in which it was passed was beyond the suit claim and was inequitable, was the sole reason for condoning the delay of 806 days which could not have been a relevant and acceptable reason for condoning the delay. The merits of the suit claim or the legality and correctness of the preliminary and final decrees, could not have been the subject matter of adjudication by the trial Court all over again and the learned Junior Civil Judge, Gadwal, could not have sat in appeal against the earlier preliminary and final decrees in this petition and in the admitted or patent absence of any explanation for the delay, the petition ought to have failed and, hence, the impugned order is liable to be set aside. 11. However, if the petitioners/defendants have any other remedies available to them in law against the preliminary and final decrees, it is obviously open to them to pursue such remedies irrespective of the result of this civil revision petition. 12. Accordingly, the Civil Revision Petition is allowed without costs and the order in I.A.No.415 of 2007 in O.S.No.2 of 2002, on the file of the Junior Civil Judge’s Court, Gadwal, dated 27.08.2008, is set aside and the said I.A.No.415 of 2007 in O.S.No.2 of 2002 is dismissed without costs. _______________________ G. BHAVANI PRASAD, J Date: 26th July, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.640 of 2009 Date: 26th July, 2011 KL