*THE HON'BLE SRI JUSTICE P.S.NARAYANA +C.R.P.No.5711 of 2009 % 6-7-2010 # A. John Peter .. Petitioner and $ Gangisetty Maddulelti @ Madduletaiah .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri Veera Reddy ^ Counsel for respondent : Sri Chandraiah Naidu ? CASES REFERRED : [1] 2004 (2) APLJ 397 2 2007 (2) L.S. 156 3 2006 (5) ALT 222 4 2008 (1) ALD 47 (SC) 5 2004 (1) ALD 849 (DB) 6 2003 (1) ALD 35 (A.P.) 7 2004 (6) ALD 642 (1) THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.No.5711 of 2009 6th July, 2010 Between :- A.John Peter .. Petitioner And Gangisetty Madduleti @ Madduletaiah .. Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA C.R.P.No.5711 of 2009 ORDER:- This Court ordered notice before admission on 5-12-2009 and in C.R.P.M.P.No.7809/2009 this Court granted interim stay on condition of depositing half of the decretal amount within a period of eight weeks. Inasmuch as, the said conditional order had not been complied with, the interim stay granted earlier had been vacated on 28-4-2010 in C.R.P.M.P.No.1294/2010. 2. Sri Veera Reddy, the learned Counsel representing the petitioner had taken this Court through the grounds raised in the Civil Revision Petition and would maintain that in the light of the facts and circumstances of the case, the learned III-Additional District Judge, Kurnool at Nandyal totally erred in dismissing the application filed by the petitioner praying for condonation of delay under Section 5 of the Limitation Act, 1963 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience). The learned Counsel also would maintain that the evidence of P.Ws.1 and 2 had not been appreciated in proper perspective and the documents Ex.A.1 to Ex.A.6 and Ex.X.1 also had not been considered in proper perspective. 3. The learned Counsel also would further maintain that the learned Judge failed to see that though the Court below ordered summons through Court and post in O.S.No.42/2003, the Revision petitioner had not received any summons and the alleged acknowledgment – Ex.X.1 does not contain the signature of the Revision petitioner. The learned Counsel also while further elaborating submissions had pointed out to the evidence available on record – the evidence of P.Ws.1 and 2 and also the evidence of R.Ws.1 and 2 and further pointed out to Ex.A.1, Ex.A.2, Ex.A.3, Ex.A.4, Ex.A.5, Ex.A.6 and also Ex.X.1 and would maintain that since the learned III-Addlitional District Judge, Kurnool at Nandyal had not appreciated the facts and circumstances in proper perspective and since the learned Judge had not exercised the discretion properly, the Civil Revision Petition to be allowed and an opportunity to be given to the Revision petitioner. 4. Per contra, Sri Chandraiah Naidu, the learned Counsel representing the respondent – plaintiff had pointed out to the respective stands taken by the parties and also further had taken this Court through the decisions which had been relied on by the learned Judge, the discussion relating thereto and also the appreciation of facts which had been elaborately discussed commencing from paras 5 to 7 and would maintain that in the light of the convincing findings which had been recorded by the learned Judge, this is not a fit matter to be interfered with. 5. Heard the Counsel on record. 6. In the light of the submissions made by the Counsel on record, the following points arise for consideration in this Civil Revision Petition:- 1) Whether the findings recorded by the learned III- Addlitional District Judge, Kurnool at Nandyal while dismissing the application I.A.No.1795/2006 in O.S.No.42/2003 to be confirmed or to be disturbed in any way in the facts and circumstances of the case? 2) If so, to what relief, the parties would be entitled to? 7. Point No.1:- The parties hereinafter for the purpose of convenience would be referred to as shown in I.A.No.1795/2006 in O.S.No.42/2003 on the file of the III-Addlitional District Judge, Kurnool at Nandyal. The unsuccessful petitioner-defendant is the Revision petitioner in the present Civil Revision Petition. The petitioner filed I.A.No.1795/2006 in O.S.No.42/2003 on the file of the III-Addlitional District Judge, Kurnool at Nandyal under Section 5 of the Limitation Act to condone the delay of 1102 days in filing an application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter in short referred to as ‘the Code’ for the purpose of convenience). 8. It is the case of the Revision petitioner-petitioner-defendant that on 18-6-2006 the petitioner received a notice in E.P.No.2/2006 filed by the plaintiff basing on the ex parte decree dt.14-10-2003 and he sent a Vakalat to his Counsel and thereafter he was bed-ridden due to jaundice and chikkungunia and thereby he could not meet his Counsel at Nandyal to know the progress of the case. Meanwhile the execution petition was closed and after that the plaintiff got transferred the decree to the III-Additional District Judge’s Court, Tirupati and filed E.P.No.11/2006 for his arrest which is pending enquiry. The petitioner also stated that after his recovering from the ailments, he met his Counsel and came to know that the plaintiff filed the suit basing on the promissory note dt.5-7-96 and in the said suit he managed the postal authorities as if he received the suit summons through register post and hence the Court set him ex parte and passed ex parte decree. The petitioner further stated that though he executed the promissory note in favour of the plaintiff, it was only as per the terms and conditions of the agreement dt.5-7-96 but not consideration was passed to him. Further, since the suit promissory note was time barred, the plaintiff forged his signature on its back by making an endorsement for payment of Rs.1,000/- on 19-4-99 and filed the suit and managed the postal authorities and obtained ex parte decree and after passing nearly 3 years time, he filed execution petition only to gain wrongfully and hence he seeks to contest the said suit and prayed to condone the delay in filing the petition. 9. The respondent – plaintiff resisted the said application by filing a counter in detail. It is stated that the petitioner – defendant borrowed money from him under a promissory note dt.5-7-96 and thereafter made part payment dt.19-4-99 and made endorsements in his hand- writing and hence the suit promissory note is not barred by limitation. It also denied that the part payment endorsement is forged one. Further it is stated that in the suit the Court ordered summons on the petitioner and after due satisfaction of the service of summons, set him ex parte and passed ex parte decree on 14-10-2003 and the petitioner had got knowledge of the same, therefore the contention of the petitioner that the respondent managed the postal authorities to show that the suit summons were served on the petitioner, is false. Further it is averred that the petitioner also received summons sent through the Court and remained absent and was rightly he was set ex parte. The contention of the petitioner that the respondent kept quiet all these years without filing the execution petition to support his contention is false and on the other hand he was waiting to know the assets of the petitioner and immediately after he came to know the same, filed the execution petition. He filed E.P.No.2/2006 on 13-6-2006 wherein the petitioner appeared on 30-6-2006 and the matter was posted for his counter to 3- 7-2006, 5-7-2006 and 14-7-2006 and as he failed to file the counter, the matter was posted for hearing to 17-7-2006 and thereafter orders were passed in favour of the respondent on 19-7-2006. Later, E.A.No.35/2006 was filed and accordingly on 8-8-2006 the decree was transferred to the III-Additional District Court, Tirupati where the respondent filed E.P.No.11/2006 seeking arrest of the petitioner and coming to know of the same as an after thought, the petitioner filed this petition to condone the abnormal delay in filing the set aside ex parte decree petition. Further it is stated that the plea taken by the petitioner that he was suffering with jaundice and chikkungunia and therefore he could not contact his Advocate to know the proceedings and thereby the delay occurred is false. 10. On behalf of the petitioner, P.Ws.1 and 2 were examined and Ex.A.1 to Ex.A.6 were marked. On behalf of the respondent, R.Ws.1 and 2 were examined. Ex.X.1 was marked. The learned Judge at para 4 formulated the following point for consideration:- “Whether the petitioner is entitled for the relief to condone the delay of 1102 days in filing the petition under Order IX Rule 13 of the Code for setting aside the ex parte decree?” The learned Judge recorded reasons in detail and ultimately came to the conclusion that there is no cause much less sufficient cause and further came to the conclusion that the delay is inordinate and ultimately dismissed the said application. Aggrieved by the same, the present Civil Revision Petition had been preferred. 11. The respondent – plaintiff filed the suit against petitioner – defendant for recovery of money on the strength of a promissory note, wherein the summons had been ordered. As per the version of the plaintiff, the summons had been duly served on the defendant but since the defendant failed to appear before the Court, the suit was decreed ex parte and inspite of it the since the defendant failed to pay the amount, the plaintiff filed execution petition and the notice therein was served on the petitioner – J.Dr., on 18-6-2006 and accordingly he sent Vakalat to his Counsel for entering his appearance and thereafter as he fell sick and suffering from jaundice and chikkungunia, he could not contact his Counsel and by the time he filed the petition under Order IX Rule 13 of the Code, there was a delay of 1102 days. The stand taken by the respondent is that the summons had been duly served on defendant and inspite of it, the defendant intentionally failed to appear before the Court and hence an ex parte decree was passed and thereafter after filing execution petition and service of notice on the petitioner, he entered his appearance but inspite of the matter being adjourned for several times, he failed to file counter and accordingly orders were had been made. The petitioner examined himself as P.W.1 and he had deposed about the facts narrated in the affidavit and also deposed about Ex.A.1, Ex.A.2, Ex.A.3, Ex.A.4, Ex.A.5 and Ex.A.6. Apart from P.W.1, P.W.2 – Dr.A.Eswaraiah was examined through Commissioner. As against this evidence, the evidence of R.Ws.1 and 2 also available on record. R.W.1 had deposed what he had stated in the counter and R.W.2 supported the version of R.W.1. Ex.X.1 is the served postal acknowledgment dt.11-8-2003. The learned Judge recorded elaborate reasons after referring to several decisions and ultimately came to the conclusion that there is no sufficient cause so as to condone the delay especially the inordinate delay of 1102 days in filing an application under Order IX Rule 13 of the Code and accordingly dismissed the said application. In K.K.MOHAN RAO VS. NARRA RANGA RAO[1] it was held as hereunder:- “When a petition is filed for condonation of the delay in filing petition for setting aside an ex parte decree, the Court can condone the delay of even few years if reasons are assigned to the satisfaction of the Court. A balance has to be maintained between the two situations one to ensure as far as possible that the adjudication takes place on merits and other situation being not to disturb rights that may accrue to one party on account of the indeference of the other.” I n GUANAGANTI BALA KRISHNAMMA v. K.AADI SESHAIAH & ANOTHER[2] it was held as hereunder:- “When the suit for recovery of amount was decreed ex parte and in the EP the defendant’s house was attached and sold in Court auction except delivering possession and then an application is filed to set aside the ex parte decree along with application to condone the delay of 2 years – When it is contended that the petitioner did not receive suit summons in which thumb impression was obtained and the petitioner is not thumb impressionist and she puts her signatures in writing and that Trial Court did not record any finding as to whether contention of petitioner as to service of summons is correct or not, except stating that petitioner allowed period of limitation to expire, the finding of the Trial Court that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right, cannot be accepted at all. If sufficient cause is shown, Court has to condone delay. Otherwise the very purpose of conferring power under Section 5 of the Limitation Act would become nugatory. Once Court is satisfied about explanation offered by party, it cannot refuse to condone delay – Hardship if any suffered by second respondent – auction purchaser, on account of delay being condoned and sale being set aside, cannot override interests of petitioner, as he can be compensated by way of costs and hence the High Court allowed the CRP setting aside the ex parte decree and consequential sale.” I n JONNALAGADDA SHUHASINI AND OTHERS v. RAVELA AROGYAIAH[3] it was held as hereunder:- “Where there is no personal service of suit summons on defendant, period of limitation to file petition to set aside ex parte decree starts from date of knowledge of decree.” I n NAHAR ENTERPRISES v. HYDERABAD ALLWYN LIMITED. AND ANOTHER[4] it was held as hereunder:- “When an ex parte decree is passed without due service of summons on the defendant, First Part of Article 123 of Limitation Act, is not attracted. Limitation in terms of second part of Article 123 of Limitation Act would start running from the date of knowledge of ex parte decree and the filing of application on receipt of summons to execute decree, not barred by limitation and hence the order dismissing the petition is set aside on deposit of amount.” In RANGAMMA (DIED) AS PER L.Rs., AND OTHERS V. DISTRICT COLLECTOR, MAHABOOBNAGAR AND OTHERS[5] it was held as hereunder:- “Though Section 5 has to be liberally construed in respect of appeals filed by the State, the Court should not adopt a too liberal approach in condoning the delay. When the reasons assigned for condonation of delay do not show any sufficient cause, the delay cannot be condoned.” In BODDUPALLY CHINA VENKANNA AND OTHERS v. EDULLA NARAYANA REDDY[6] it was held as hereunder:- “When a petition for condonation of the delay of 331 days is filed under Section 5 of the Limitation Act for setting aside the ex parte decree on the ground there was compromise before the village elders to withdraw the suit without details of the alleged compromise and when no evidence is adduced in support of the said statement, it amounts sufficient cause is not shown for condoning the inordinate delay and the petition is liable to be dismissed.” I n N.GOVERDHAN REDDY v. INDRANI FINANCIERS AND OTHERS[7] it was held as hereunder:- “When the petitioner-second defendant filed the petition under Section 5 of Limitation Act for condonation of delay stating that he came to know about the ex parte decree on 15-12-2000 and thereafter made application to set aside the same in February, 2001, there was absolutely no explanation for the delay and hence the delay cannot be condoned as a matter of course. Applicant has to establish sufficient cause for condonation of delay.” Apart from the decisions specified supra, several other decisions also had been referred to and after recording reasons in detail the learned Judge came to the conclusion that the inordinate delay of 1102 days in filing the application under Section 5 of the Act along with an application under Order IX Rule 13 of the Code cannot be permitted. On perusal of the reasons recorded by the learned Judge this Court is thoroughly satisfied that the learned Judge exercised the discretion properly in refusing to condone the inordinate delay especially in the absence of any sufficient cause being explained, there is no illegality or infirmity in the order under challenge. 12. Accordingly, the Civil Revision Petition shall stand dismissed. No order as to costs. ______________________ Justice P.S.Narayana 6th July, 2010 smr [1] 2004 (2) APLJ 397 [2] 2007 (2) L.S. 156 [3] 2006 (5) ALT 222 [4] 2008 (1) ALD 47 (SC) [5] 2004 (1) ALD 849 (DB) [6] 2003 (1) ALD 35 (A.P.) [7] 2004 (6) ALD 642 (1)