IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE K.G.SHANKAR C.R.P.NO.2419 OF 2007 21-12-2010 Between:- Chandripu Mahalakshmi .. Petitioner And Jogi Venkata Rao ..Respondent ORDER:- There was a delay of 784 days in filing an application under Order IX Rule 13 C.P.C by the petitioner/defendant. The learned trial Judge refused to condone the delay through the impugned order in I.A.No.891 of 2005 in O.S.No.183 of 1996. Hence, the Revision. The plaintiff laid the suit for specific performance of the agreement of sale and the defendant remained exparte. Exparte decree was passed on 09-07-2003. The plaintiff subsequently executed the decree and obtained a sale deed, which was executed by the executing Court and also took possession of the property. This is the background in which the defendant now seeks for the condonation of delay in filing application under Order IX Rule 13 C.P.C. The petitioner is an elderly lady. She was described to be seventy years old by the time the revision was laid. The petitioner/defendant further claims that she has been suffering from blood pressure and diabetes. The petitioner claims that in this background, she could not contact her counsel, that the case came up before the trial Court for the evidence on the side of the defendant and that the absence of the defendant from appearing before the trial Court on the given date was due to her ill health and was not due to carelessness on the part of the petitioner/defendant. The learned counsel for the defendant placed reliance upon COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS. KATIJI AND OTHERS[1] where the Supreme Court considered that a liberal view should be adopted in matters relating to condonation of delay. The learned Counsel for the petitioner/defendant also placed reliance upon N.BALAKRISHNAN VS. M.KRISHNAMURTHY[2]. The Supreme Court again approved the condonation of delay of 883 days as determined by the trial Court. On the basis of these decisions, the learned Counsel for the petitioner/defendant contends that the delay in filing the petition under Order IX Rule 13 C.P.C. deserves to be condoned. Learned Counsel for the plaintiff, on the other hand, contended that in N.Balakrishnan’s Case (2 supra) relied upon by the learned Counsel for the petitioner, the Supreme Court observed that the appellate Court shall not disturb the finding of the trial Court regarding the condonation of delay unless the trial Court exercises the discretion on untenable grounds or where the order of the trial Court was arbitrary or perverse. He submitted that the order of the learned trial Judge, therefore, does not deserve to be disturbed. I am not able to agree with the contention of the learned counsel for the plaintiff/respondent. The trial Court, in Para No.9 of the impugned Order, refused to condone the delay of 784 days but has not assigned any reason for refusing to condone the delay. I, therefore, consider that it is a case where the impugned order deserves to be interfered with. The learned Counsel for the respondent also placed reliance u p o n BODDUPALLY CHINA VENKANNA VS. EDULLA NARAYANA REDDY[3] where the High Court considered that the Court shall exercise the powers under Section 5 of the Limitation Act with caution. I n ORIENTAL AROMA CHEMICAL INDUSTRIES VS. GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION[4], the Supreme Court declined to condone delay of more than four years. The delay in the present case, however, is 784 days. More important, the defendant is an old lady. Added to it, the plaintiff not only executed the decree but also has completely realized the fruits of the decree. I, therefore, consider that giving an opportunity to the defendant to contest the case would meet the ends of justice. However, I am of the opinion that as the petitioner/defendant moved the Court with a delay of more than two years, I consider it appropriate to allow the petition on terms only. Accordingly, the delay in filing application under Order IX Rule 13 C.P.C. by the petitioner/defendant would stand condoned in the event the petitioner/defendant deposits the suit costs to the credit of the case within eight (8) weeks from today failing which, this Revision shall stand dismissed. In the event the costs are deposited, the delay in filing petition under Order IX Rule 13 C.P.C. stands condoned. The trial Court shall entertain application under Order IX Rule 13 C.P.C in such an event and shall dispose of the same on merits. In such an event, the decree that was already executed shall not be disturbed pending disposal of the suit. The Revision is ordered accordingly. No costs. _______________ K.G.SHANKAR,J 21st December 2010 AMD [1] (1987) 2 Supreme Court Cases 107 [2] AIR 1998 SUPREME COURT 3222 [3] (2002)5 ALD 96 [4] 2010(2) SCC(Cri) 1291