THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No.1878 of 2010 DT.5.8.2011 Between: Kalyanam Phanikumar s/o Rangarao & another … Petitioner And Swamy Subba Rao s/o Pullaiah … Respondent Counsel for the Petitioner: Sri E.V.S.S.Acharyulu for E.V.S.S.Venugopal Counsel for respondent: Sri Subbarao Korrapati The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No.1878 of 2010 O R D E R: Heard the learned counsel. The petitioners herein are the defendants in the suit O.S.No.65 of 2008 filed by the respondent-plaintiff herein on the file of IV Additional District Judge, Guntur for specific performance of Agreement of Sale dated 20-2- 2005. It is stated in the said suit that the petitioners were set ex parte and the ex parte decree was passed on 6-4-2009. As there was delay in filing the application to set aside the ex parte decree, the petitioners filed I.A.No.1169 of 2009 in the said suit under Section 5 of the Limitation Act for condonation of delay of 122 days. The said application was dismissed considering the merits of the case holding that there was no dispute with regard to the execution of Agreement of Sale and the total and part sale consideration, and the plaintiff was always ready and willing to pay the remaining balance sale consideration, and therefore, the suit was liable to be decreed and it was rightly decreed. If there were any disputed questions by way of written statement, I am of the opinion that the learned Judge ought to have passed the judgment in the main suit itself instead of passing an ex parte decree. The question before the Court below was to condone the delay of 122 days in filing the application to set aside the ex parte decree and whether any sufficient cause was shown by the petitioners for such a delay. It is the contention of the petitioners that the suit was pending at Guntur whereas the 1st petitioner is working as a Teacher in Vamshi School at Machilipatnam and his junior paternal uncle, who is the 2nd petitioner, was looking after the case and his junior paternal uncle due to ill-health was off and on staying at Hyderabad for treatment, and as such, he could not contact his advocate and ascertain the information. As the reasons stated in the affidavit for not pursuing the suit proceedings were disputed, the Court below ought to have dealt with the controversy involved in the said application to the extent whether to condone the delay and whether sufficient cause is shown for such delay. The Court below instead of deciding the issue of condonation has considered on merits of the case and dismissed the application. As this being the suit for specific performance of Agreement of Sale, I am of the opinion that it is just and proper to condone the delay on condition of the petitioner depositing costs of Rs.2,000/- (Rupees two thousand only) to the credit of Guntur Legal Services Authority, Guntur within two weeks from today, and on such deposit, the application in I.A.No.1169 of 2009 in O.S.No.65 of 2008 filed for condonation of delay of 122 days in filing the application to set aside the ex parte order dated 6-4-2009 stands allowed, and the IV Additional District Judge, Guntur may consider the application filed to set aside the ex parte decree thereof. The revision is accordingly disposed of. No costs. ______________ V. ESWARAIAH,J DATE: 5.8.2011 THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No.1878 of 2010 DATE: 5.8.2011