THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.3201 OF 2006 DATED JULY, 2010 BETWEEN Samala Prabhakar … Petitioner And K.Venkateshwar Rao … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.3201 OF 2006 ORDER: This Civil Revision Petition arises out of the order dated 07.12.2005 passed by the II Additional Senior Civil Judge, Warangal, dismissing I.A.No.429 of 2005 in O.S.No.239 of 2003, refusing to condone the delay of 421 days in filing a petition for setting aside the ex parte decree. By order dated 25.07.2006, this Court granted interim stay of all further proceedings pursuant to the Judgment and Decree dated 18.11.2003 in O.S.No.239 of 2003. The petitioner herein and in the said I.A. was the defendant in the suit, O.S.No.239 of 2003, which was filed for recovery of Rs.1,67,400/-. The said suit was decreed ex parte on 18.11.2003. Thereafter, the respondent decree holder filed E.P.No.92 of 2004 seeking execution of the said decree. Admittedly, the petitioner received notices in the execution proceedings on 26.04.2004. However, he filed the subject petition under Section 5 of the Limitation Act, 1963 seeking condonation of delay in the filing of the petition to set aside the ex parte decree dated 18.11.2003 only on 22.06.2005. It was the case of the petitioner that he was employed in the United States of America at the relevant point of time and that no suit summons were served upon him as prescribed under law. He however did not choose to explain the reasons for the delay in the filing of the petition even after his knowledge of the decree, resulting from the service of notices in the Execution Petition in April, 2004. The respondent decree holder filed his counter to the condone delay application stating that the suit summons were sent to the permanent residence of the petitioner in Warangal but as his wife refused to receive the same, it was served through affixture. Thereafter, as the Court permitted service of summons through Electronic Mail (E- Mail) service, he had himself sent the summons along with the plaint copy to the petitioner by way of E-Mail. He further pointed out that the petitioner had entered appearance through counsel in the execution proceedings in April, 2004 itself. He therefore stated that the petitioner had full knowledge about the suit proceedings and no case was made out for condoning the delay as the same was not explained satisfactorily. The trial Court took note of the fact that the petitioner did not deny the receipt of the E-Mail sent by the plaintiff during the course of the suit proceedings. In this regard, the petitioner’s own averment in the affidavit filed in support of I.A.No.429 of 2005 in O.S.No.239 of 2003 is of relevance: “3. ……… The service of summons through e-mail is so far not recognized as service sufficient under the law in force.” The trial Court further observed that there was no explanation of the delay from April, 2004 to the date of filing of the condone delay petition. As service of summons through E-Mail was admitted by the petitioner and the only objection was that the same was not in accordance with the procedure, the trial Court opined that he had knowledge of the proceedings and was only protracting the matter by seeking to reopen the suit. The trial Court therefore dismissed the petition, refusing to condone the delay. It is no doubt true that the trial Court ought not to have gone into the merits of the case for deciding the condone delay application. The issue before the trial Court was whether the delay was satisfactorily explained. Be that as it may, Order V, Rule 25 of the Code of Civil Procedure deals with service of summons where the defendant resides out of India and has no agent in India. In its applicability to the State of Andhra Pradesh, this Rule provides for service of summons by post/by courier service as approved by the High Court/by fax message/by electronic mail service/by any other means provided under the Rules made by the High Court. Therefore, service of summons by way of E-Mail is a recognized procedure after the amendment of the Code of Civil Procedure with effect from 01.07.2002. Therefore, the contention of the petitioner that E-Mail service is not recognized as sufficient service under law in force is without basis. I n GUANAGANTI BALA KRISHNAMMA v. K.AADI SESHAIAH[1], a learned Judge of this Court opined that if sufficient cause is shown the Court has to condone the delay. The learned Judge further observed that otherwise, the very purpose of conferring power under Section 5 of the Limitation Act, 1963 would become nugatory. Discretion of the Court, according to the learned Judge, is mostly about recording the satisfaction as regards the explanation for the delay and once the Court is satisfied about the explanation offered by the party, it cannot refuse to condone the delay. However, in the present case the petitioner, as aforestated, failed to explain his conduct and the delay in the filing of the subject application, given the fact that he was well aware of the suit proceedings and the ex parte decree long before the filing of the condone delay application. This Judgment is therefore of no avail to the petitioner. Viewed thus, the undisputed facts which emerge are that the petitioner was served the suit summons along with the plaint copy by way of an E-Mail during the course of the suit proceedings. He had knowledge of the ex parte decree in April, 2004 when he was served the notices in the execution proceedings. He filed the condone delay application only in June, 2005, i.e., more than a year after being served notices in the execution proceedings. Given these facts, the attempt on the part of the petitioner in explaining the delay falls far short of the requirement under Section 5 of the Limitation Act, 1963. In such view of the matter, the order of the trial Court refusing to condone the delay in the filing of the application to set aside the ex parte decree is lawful and brooks no interference by this Court in exercise of its revisionary jurisdiction. The Civil Revision Petition is accordingly dismissed. The interim stay granted on 25.07.2006 shall stand vacated. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. __________ JULY, 2010. VGSR [1] 2007 (4) ALT 161