IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE TWENTY FOURTH [24TH] DAY OF JUNE TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2902 of 2007 Between: Smt. T. Padma … Revision Petitioner/Plaintiff And: Andreddy Sai Reddy & others … Respondents/defendants THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2902 of 2007 ORDER: This civil revision petition is directed against the order dated 22.03.2007 in IA No.444 of 2006 in OS No.39 of 2004 on the file of the Senior Civil Judge, Jangaon, wherein, the application filed by the defendants-respondents herein under Order IX Rule 13 of CPC for setting aside the ex-parte decree, was allowed on condition of their paying costs of Rs.1,000/- to the plaintiff. 2. Heard both sides. Perused the record. 3. The petitioner herein filed suit OS No.39 of 2004 against the respondents herein-defendants for specific performance of agreement of sale. The respondents-defendants filed written statement and contested the suit. Necessary issues were framed and the trial of the suit also commenced. The plaintiff was examined as PW.1. At this stage, the respondents-defendants did not pursue the matter and failed to cross-examine PW.1, as such, they were set ex-parte and ex-parte decree was passed on 15.09.2006. Subsequently, the defendants filed IA No.444 of 2006 under Order IX Rule 13 CPC for setting aside the ex-parte decree on the ground that they fell ill during relevant period and their absence was not intentional. In support of their plea, they filed medical certificates issued by the Deputy Civil Surgeon, District Hospital, Jangaon to the effect that they were suffering from fever and were bed ridden. The petitioner herein filed counter opposing the said application, inter-alia contending that the decree passed on 15.09.2006 was not an ex-parte decree and that it was a decree passed on merits. The trial Court by impugned order allowed application and set aside the ex-parte decree subject to payment of costs of Rs.1,000/- by the defendants. Hence, the present revision by the plaintiff. 4. A perusal of the decree dated 15.09.2006, shows that it was passed on the oral evidence of PW.1 and Exs.A.1 to A.5 marked on his behalf. In the impugned order in IA No.444 of 2006, the learned Senior Civil Judge has stated in para 5, as follows: “At any rate the decree which passed on 15.09.2006 cannot be said as a decree which passed on merits. In fact, this Court specifically mentioned on the docket order while passing the decree on that day that such decree is passed under Order 17 Rule 2 of CPC read with Order 9 Rule 6 of CPC, though in the body of the judgment it was not mentioned. It is needless to say that a decree which passed under Order 17 Rule 2 of CPC is nothing but an ex-parte decree”. 5. Thus, the trial Court appears to have specifically stated in the docket order while passing the decree that the decree was passed under Order 17 Rule 2 of CPC. In view of the said clarification, the judgment and decree cannot be construed to have been passed under Order 17 Rule 3 of CPC. It is not disputed that when a decree is passed only under Order 17 Rule 2 of CPC, the same can be set aside under Order IX Rule 13 of CPC. Though in the body of the judgment, it is not specifically stated that it was an ex-parte decree, still there is clarification on account of specifications contained on the docket proceedings to the effect that it was a decree passed under Order 17 Rule 2 of CPC. The contention of the learned counsel for the petitioner that it was a decree passed on merits and therefore, cannot be set aside under Order IX Rule 13 of CPC, is untenable. The trial Court having been satisfied with the reasons furnished by the respondents for their absence, which reason has been duly supported by medical certificates, it is considered that the discretion exercised by the trial Court for setting aside the ex-parte decree does not call for any interference. 6. Learned counsel for the petitioner/plaintiff submitted that subsequent to passing of the decree, he filed E.P. and deposited balance sale price in to Court. As the decree is now set aside, the plaintiff is at liberty to take return of the balance sale price deposited by him. The plaintiff is also at liberty to receive costs of Rs.1,000/- ordered to be paid by the trial Court while setting aside the ex-parte decree. 7. Having regard to the fact that the suit is of the year 2004, the trial Court is directed to dispose of the suit within a period of four (4) months from the date of receipt of the copy of this order and both parties shall cooperate in that regard. 8. In the result, the civil revision petition is disposed of accordingly. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 24.06.2010 bss