HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.4180 OF 2008 Dt.26.11.2010 Between: Jampana Padmaraju and another ..Petitioners And Kurru Sanyasirao and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.4180 OF 2008 ORDER: Petitioners herein are defendants in the suit O.S.No.164 of 2001 on the file of the Senior Civil Judge, Gajuwaka. The respondents filed the said suit for declaration of their right and title in respect of the plaint schedule property bearing plot Nos.10 and 11 in an extent of 300 sq.yards each in Survey No.8 of Kurmannapalem village situated within the specified boundaries. It is stated that notices were sent to the defendants i.e., petitioners herein and as the notice could not be served publication of notice was ordered and in spite of publication of notice defendants did not turn up and hence they were set ex parte on 6.8.2002 and they were called absent and the suit was decreed on 11.9.2002. The petitioners/defendants filed I.A.No.974 of 2007 to condone the delay of 1608 days in filing the application under Order 9, Rule 13 C.P.C., seeking to set aside the ex parte decree dated 11.9.2002. The reasons stated in the affidavit filed in support of the application filed under Section 5 of the Limitation Act are that the petitioners/defendants purchased house site measuring an extent of 380 sq.yards bearing plot No.22A, BLP No.1/93 of Kurmannapalem Village, Gajuwaka Municipal Limits, Gajuwaka Mandal, Visakhapatnam District, from the Mathrusree Co-operative House Building Society Ltd., and they have obtained registered sale deed on 23.3.1998 for a valid consideration of Rs.9500/- and they are in peaceful possession and enjoyment of the said property. While so, on 4.2.2007 when the respondents-plaintiffs tried to interfere with their peaceful possession and enjoyment, they came to know about the passing of ex parte decree and accordingly the said application was filed. Counter has been filed opposing to condone the inordinate delay of 1608 days denying the averments made by the defendants. It is stated that notices in the suit were sent to the correct address on the date of filing of the suit and the statement of the defendants that they were not residing in the given address in the petition is incorrect and untrue. It is further stated that after publication of the notice only they were set ex parte and ex parte decree was passed. After considering the rival contentions, the trial court dismissed the said application on the ground that the docket proceedings goes to show that after publication of the notice in the local newspaper the defendants did not turn up and hence they were set ex parte on 6.8.2002 and therefore ex parte decree was passed and it cannot be said that publication of notice is not a sufficient notice, that they have no knowledge of the suit proceedings and the inordinate delay is not properly explained. Learned counsel appearing for the petitioners submits that the sale deeds said to have been obtained by them in 1998, whereas the sale deeds of the plaintiffs are 1991 and 1992 much earlier to the sale deeds of the defendants. Learned counsel appearing for the petitioners placed reliance on the decision of the Supreme Court in N.Balakrishnan v. M.Krishnamurthy[1] wherein it was held that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned, as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. In the instant case, the petitioners have not substantiated that they were not residing in the given address when the suit summons were sent and that there was no paper publication and notification. However, the petitioners’ sale deed is much subsequent to the sale deed of the plaintiff. Having regard to the facts and circumstances of the case, I am not inclined to express any opinion with regard to the merits of the case. So far as the delay is concerned, I do not see any cause much less sufficient cause to condone the inordinate delay of 1608 days in filing the petition to set aside the ex parte decree. The court below rightly dismissed the said application. I do not see any infirmity, legal or otherwise in the order impugned. The civil revision petition is accordingly dismissed. No order as to costs. _________________ V.ESWARAIAH, J. 26.11.2010 kpr [1] (1998) 7 SCC 123