IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3193 of 2011 Between: Saddula Narsimha & another .. Petitioners AND Saddula Tulsi Das & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3193 of 2011 ORDER: The civil revision petition is directed against the order in I.A.No.103 of 2009 in C.F.R. No.3902 of 2007, dated 19.03.2009, on the file of the District and Sessions Judge, Mahabubnagar. 2. The revision petitioners filed I.A.No.103 of 2009 under Section 5 of the Limitation Act, 1963, read with Order XLI Rule 3A of the Code of Civil Procedure, 1908, requesting to condone a delay of 10 years 11 months and 22 days in filing an appeal against the judgment and decree in O.S.No.4 of 1996, on the file of the Junior Civil Judge’s Court, Shadnagar, on the ground of their father being the party to the suit who did not inform them about the suit. The petitioners claimed that though their father engaged an Advocate, the Advocate reported no instructions later, leading to the ex parte decree on 01.09.1996. The respondents herein were stated to have filed an execution petition more than 10 years after the decree as the legal heirs of the original decree holder and it is only on service of notices in the execution petition on 25.08.2007 they came to know about the fraud played by the father of the respondents. In fact, when the respondents started interfering with the suit lands denying the title of the petitioners in 2002, they filed O.S.No.104 of 2002, on the file of the Senior Civil Judge’s Court, Mahabubnagar, for declaration of title and injunction in which the respondents filed the written statement referring to the decree for possession granted in O.S.No.4 of 1996, but unfortunately, the learned Advocate for the revision petitioners did not inform the same to the revision petitioners. The revision petitioners, therefore, contended that the delay in filing an appeal against the decree obtained by fraud ex parte may be condoned in the interests of justice. 3. The respondents did not appear before the Appellate Court though they were served with notices of the application and the Court proceeded to decide the application on hearing the learned counsel for the revision petitioners before it. 4. The impugned order noted that though the decree, dated 01.09.1996, was not attempted to be executed till 2007 by the respondents who claimed to be the legal representatives of the original decree holder and though the revision petitioners were not parties to O.S.No.4 of 1996, it is the own admission of the revision petitioners that in the written statement in O.S.No.104 of 2002, filed by them against the respondents in respect of the same property, the respondents specifically referred to the decree obtained by their father in O.S.No.4 of 1996. The Court, therefore, presumed knowledge of the decree in O.S.No.4 of 1996 to the revision petitioners at least since the filing of the written statement in O.S.No.104 of 2002 and in the absence of examination of the counsel appearing for the revision petitioners in O.S.No.104 of 2002, the Court refused to accept the plea that the counsel did not inform the contents of the written statement to the revision petitioners. Consequently, finding absence of any sufficient cause for condonation of delay, the Court dismissed the petition without costs. 5. The revision petitioners again contend herein that they could not have had any knowledge of O.S.No.4 of 1996 being not parties to the same and in view of the absence of any information to them from their father and in the absence of any knowledge till the service of notices in the execution petition on 25.08.2007, the mere fact that there was some reference in the written statement in O.S.No.104 of 2002 in the earlier suit should not have led to the dismissal of the petition for condonation of delay. The revision petitioners also contended that in C.R.P.No.327 of 2008, the High Court directed on 11.11.2008 to present an appeal along with applications for leave and condonation of delay and, accordingly, they presented the appeal along with the miscellaneous petitions. They, therefore, desired the delay to be condoned. 6. Heard Sri M. Achuta Reddy, learned counsel for the revision petitioners at the stage of admission without ordering any notices to the respondents. 7. In considering the susceptibility of the impugned order for any interference in exercise of the restricted revisional jurisdiction, it has to be noted that the facts, as narrated in the impugned order, are not seriously in dispute. The father of the revision petitioners admittedly entered appearance in O.S.No.4 of 1996 to defend himself through an advocate and an ex parte decree resulted on 01.09.1996 only after that Advocate reported no instructions and obviously, the father of the revision petitioners did not appear before that Court. The reasons for the Court accepting the version of the plaintiff therein while passing an ex parte decree are not the subject of adjudication herein and it is true, as noted by the Appellate Court in the impugned order, that no execution petition was filed by the original decree holder during his life time and it is probable that the revision petitioners might have had no knowledge of the ex parte decree earlier. However, there could not have been any justifiable explanation for the inaction since the filing of the written statement by the respondents in O.S.No.104 of 2002 filed by the revision petitioners in which they specifically referred to the earlier ex parte decree in O.S.No.4 of 1996. The claim that the counsel for the revision petitioners did not inform them of the contents of the written statement could not have been accepted without placing the version of the learned counsel himself before the Court and when the Court could not have presumed the learned counsel to have not discharged his duty of keeping his clients informed of the contents of the written statement, more particularly, of the existence of an ex parte decree and judgment in O.S.No.4 of 1996 which may prove fatal to the claim of his clients in O.S.No.104 of 2002. 8. While the result of O.S.No.104 of 2002 in favour of the revision petitioners as seen from the copy of the judgment, dated 07.07.2008, filed in the material papers is not germane in considering this petition, the petitioners cannot be considered to have offered any sufficient cause for condonation of delay even if the same is viewed very liberally and the abnormal delay of 10 years 11 months and 22 days could not have been condoned by the Court in the absence of any explanation for the delay at least from the date of filing of the written statement in O.S.No.104 of 2002. 9. While the impugned order, therefore, could not have been interfered with in revision, if the ex parte judgment and decree in O.S.No.4 of 1996 are vitiated by any fraud or suppression of material facts or any other such vitiating factor, it may be open to the revision petitioners to take recourse to appropriate remedies provided by law, if any available to them, to have such ex parte judgment and decree nullified in accordance with law. 10. Subject to any such right, the Civil Revision Petition should fail and is, accordingly, dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 26th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3193 of 2011 Date: 26th August, 2011 KL