THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.4818 of 2010 November 11, 2010 Between: Gummadikayala @ Egavolla Chandra Sekhara Reddy And others … Petitioners And Gummadikayala @ Chanchannagari Pedda Maddi Reddy (died), S/o.Chinna Maddi Reddy And others ... Respondents/Defendants THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.4818 of 2010 ORDER: Defendants 1 to 4, 6 to 11, 16 and 19 are the petitioners in this revision filed under Section 115 of the Code of Civil Procedure, 1908 (CPC). Respondents 1 to 9 herein instituted O.S.No.70 of 2002 on the file of the Senior Civil Judge, Madanapalle, seeking partition of an extent of Acs.2.00 out of Acs.12.44 in S.No.970 situated at Kosuvaripalle village of Thamballapalle Mandal in Chittoor District, into six equal shares and allotment of one such share to them. Defendants are opposing the suit. Their plea is that the plaintiffs were entitled to 2/12th share in the suit schedule property. The suit was decreed ex parte on 28.11.2008. Petitioners herein moved application to set aside the ex parte decree. There was a delay. Therefore, they filed I.A.No.175 of 2010 seeking condonation of delay of 442 days in filing application under Order IX Rule 13 of CPC. By impugned order dated 03.8.2010 the same was dismissed. Therefore they are before this Court in this revision. The Counsel for petitioners contends that the actual delay was 114 days and that the Court below erred in assuming that there was delay of 442 days. He would urge that the petitioners were under bona fide belief that the matter has been compromised and merely because they could not persuade plaintiffs to withdraw the suit, negligence cannot be attributed to them. Lastly he would urge that when the petitioners are disputing the share of the plaintiffs, the observations made by the learned trial Court that the shares of defendants can be determined at the time of execution of warrant is an error apparent on the face of record. It is well settled that when the Court below declines to condone the delay, revisional Court has to independently consider the matter ignoring the impugned order (see N.Balakrishnan v M.Krishna Murthy[1]). Applying this ratio, this Court has examined the matter and does not find any reason to interfere in the matter. The affidavit accompanying the interlocutory application under Section 5 of the Limitation Act, 1963, was filed by the first petitioner (first defendant). He alleged as follows. I submit that after filing of chief affidavit in the above suit on the intervention of the village elders a civil suit had been compromised on the file of the Hon’ble Junior Civil Judge, Thamballapalle in between us and the in between us and the plaintiffs and at the time of compromise the plaintiffs agreed to withdraw the present suit in the presence of elders and they promised to take steps to that effect. Thus myself and other defendants are under impression that the plaintiffs had taken steps and that the suit had been dismissed and that we did not contact my advocate. As there was no proper representation from our side this Hon’ble Court called us and passed ex parte preliminary decree in favour of the plaintiffs and against us. I submit that surprisingly we received the notices from this Hon’ble Court recently and came to know that the plaintiffs had played fraud and obtained ex parte preliminary decree on 28.11.2008 in their favour and filed a petition in I.A.No.284 of 2009 for appointment of Court Commissioner to suggest the mode of division of the plaint schedule property in pursuance of the ex parte preliminary decree dated 28.11.2008. After receipt of notices only we came to know that the plaintiffs played fraud on us and obtained ex parte decree from this Hon’ble Court. We have got fair chances to succeed in the case. The above allegation was denied by respondents 1 to 9 in their counter affidavit. Even then the petitioners did not adduce any evidence either with regard to compromise or agreement between them and plaintiffs. When the allegation of sufficient cause remains not proved by the defendants, they cannot have any grievance that the delay is not condoned. T h e ex parte decree was passed on 28.11.2008 and petitioners presented application for condonation of delay on 19.2.2010 and, therefore, the delay is certainly 442 days. The Court below has adverted to the matter in the correct perspective and has not committed any error much less an error apparent on the face of record. The civil revision petition is therefore dismissed. _______________ (V.V.S.RAO,J) November 11, 2010. YS [1] (1998) 7 SCC 123 : AIR 1998 SC 3222