THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.232 OF 2006 JUDGMENT: This Civil Miscellaneous Appeal, under Order XLIII Rule (1) d of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the order, dated 02.01.2006, in I.A.No.823 of 2005 in O.S.No.24 of 2003, on the file of the Additional Senior Civil Judge, Ongole, whereunder and whereby, the petition filed under Order IX Rule 13 C.P.C., to set aside the ex parte decree, dated 22.07.2003, and to give an opportunity to contest the suit, was dismissed. 2. Respondents/plaintiffs filed the suit for realization of certain amount based on a mortgage deed. After receipt of summons, appellant No.5/defendant No.5 engaged an Advocate and filed a written statement admitting the suit claim and sought time to discharge the said debt. He pleaded to pass a mortgage decree facilitating him to pay the amount in installments. Thereafter, as he was not evincing any interest in the suit, he was set ex parte on 22.07.2003. Aggrieved by the same, the Interlocutory Application was filed. The trial Court dismissed the petition, vide the impugned order, on the ground that there was delay and no separate application was filed to condone the delay. 3. Learned counsel for the appellants placed reliance on a decision of this Court in Andari Govindaiah v. Vemula Venkatamma (died)[1], wherein it is held thus: “So far as the 1st reason assigned by the Court below is concerned, it is no doubt true that there is no separate application filed under Section 5 of the Limitation Act. But, the petitioner has explained the delay in the affidavit filed in support of Order 9 Rule 13 application stating that when he engaged an advocate at Puttur, he was told by him that he would attend the matter and the presence of the petitioner would be required only at the time of evidence and he would write a letter to that effect. When he did not receive any letter, he contacted the advocate and found that an ex parte decree was passed. But, the learned Counsel for the petitioner strenuously contended that even if no separate formal application was filed, if the delay was otherwise explained in the affidavit filed in support of the application, it would be within the jurisdiction of the Court to condone the delay and in support of this proposition, he relied upon a Division Bench judgment of this Court in Ramachandra Row vs. Seshaiah. In the said decision, this Court held as under: “the contention that the present order of the District Collector is invalid because he could not entertain a barred appeal without a petition to excuse delay supported by an affidavit setting out the reasons for the delay is equally without any force. It is not necessary that there should be a formal petition to excuse delay. It is always open to a Court or a tribunal to condone the delay if the person concerned is able to convince it that there were justificable grounds for the delay in presenting an appeal or a petition. The filing of a formal petition for excusing delay is not the sine qua non for the exercise of that power……” The learned counsel for the petitioner also relied upon another ruling of the high Court of Kerala reported in Unniraman vs. Padmanabhan. That was also a case in which an ex parte decree was passed and an application was filed under order 9 Rule 13 C.P.C. Their Lordships of the High Court of Kerala held in the said decision that if the delay was explained by the affidavit filed in support of the application under Order 9 Rule 13 and even if there was no separate application under Section 5 of the Limitation Act, the delay could be condoned if the applicant made out the sufficient cause. Having regard to this principle enunciated by this Court in ‘Ramachandra Row’s case (1 supra) and in view of the decision of the High Court of Kerala in Unniraman’s case (2 supra), I am of the opinion that if the delay is otherwise explained on the basis of an affidavit filed in support of an application under Order 9 Rule 13 CPC even if there is no separate application for condonation of delay, the delay could be condoned. As held by the Supreme Court in ‘Bhagwan Swaroop vs. Mool Chand3’, the Court should not take a hyper technical approach to the case, if justice otherwise requires. Therefore, I am of the view that the Court below should have considered the case of the petitioner for condonation of delay on the basis of the affidavit already filed in support of an application under Order 9 Rule 13 C.P.C.” Even assuming for a moment that no formal application for condonation of delay under Section 5 of the Limitation Act, 1963, (for short, “the Act”) is filed, no explanation is offered in the affidavit filed in support of the petition under IX Rule 13 C.P.C. Therefore, the above decision has no application to the facts of the case. 4. Under Article 123 in the Schedule to the Act, the period of limitation in making an application to set aside a decree ex parte is thirty days from the date of the decree or, when the summons or notice not duly served, when the applicant had knowledge of the decree. The question of knowledge of the decree by appellant No.5 only arises where summons or notice has not been duly served. Admittedly, appellant No.5 received summons in the suit. The Advocate engaged by appellant No.5 filed vakalat. Appellant No.5 as defendant No.5 filed written statement on 20.03.2002 praying to pass a decree for the suit amount and permit them to pay the suit amount in two equal installments. Thereafter, an ex parte preliminary decree was passed on 22.07.2003. It is not in dispute that appellant No.5 received summons in final decree application on 24.05.2005. Under Order IX Rule 13 C.P.C., a decree passed ex parte against a defendant is liable to be set aside if the summons was not duly served or if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the summons is not duly served, the defendant suffers an injury and he is entitled ex debito justitiae to an order setting aside the ex parte decree, provided he applies to the Court within the prescribed period of limitation. When there is a delay, without filing an application under Section 5 of the Act to condone the delay, filing of application under Order IX Rule 13 C.P.C. to set aside the ex parte decree is not maintainable. The trial Court rightly dismissed the petition. Hence, there are no grounds to interfere with the impugned order. 5. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J March 28, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.232 OF 2006 Between: Shaik Karimunnisa and others .....APPELLANTS AND Purini Polireddy and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.232 OF 2006 March 28, 2011 [1] 1995 ALT 3 685