HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1446 of 2009 CIVIL REVISION PETITION No.1460 of 2009 and CIVIL REVISION PETITION No.1461 of 2009 Date: October 20, 2011 CIVIL REVISION PETITION No.1446 of 2009: Between: S.N. Bayya Reddy … Petitioner/Plaintiff And 1. Vadugupalle Ramanappa and 3 others. … Respondents/Defendants * * * CIVIL REVISION PETITION No.1460 of 2009: Between: S.N. Bayya Reddy … Petitioner/Plaintiff And 1. Vadugupalle Ramanappa and 11 others. … Respondents/Defendants * * * CIVIL REVISION PETITION No.1461 of 2009: Between: 1. D. Siva Reddy & 3 others … Petitioners/Defendants And 1. Vadugupalle Ramanappa … Respondent/Plaintiff * * * HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1446 of 2009 CIVIL REVISION PETITION No.1460 of 2009 and CIVIL REVISION PETITION No.1461 of 2009 COMMON ORDER: These three revisions arise out of three suits being tried together. The petitioner in C.R.P. No.1446 of 2009 and C.R.P. No.1460 of 2009 filed O.S. No.81 of 2001 and O.S. No.167 of 2001 for perpetual injunction and for partition and separate possession respectively. The respondents herein had filed O.S. No.142 of 2000 for specific performance of agreement of sale. All the three suits concerned the same suit schedule property which is a land admeasuring about Ac.5.00. 2. It appears that O.S. No.142 of 2000 was coming up for cross- examination of P.W.1 and the petitioner herein had taken several adjournments and on the last date of hearing i.e., 12.12.2006 there was neither any representation on behalf of the petitioner nor costs of Rs.100/- as earlier ordered were paid. Consequently, the petitioner was set ex parte and later the Court below recorded ex parte evidence of the plaintiff and passed ex parte decree on 19.12.2006. Since the two suits O.S. No.81 of 2001 and O.S. No.167 of 2001 were clubbed with O.S. No.142 of 2000, on 12.12.2006 those two suits of the petitioner were dismissed for default. The petitioner has filed three separate applications on 07.3.2007 seeking to set aside the ex parte decree in O.S. No.142 of 2000 as well as applications seeking restoration of O.S. No.81 of 2001 and O.S. No.167 of 2001. There was delay of 45 days in presentation of applications for condonation of delay. Since the said applications were dismissed by the trial court, the present revision petitions are filed. 3. Heard the learned counsel for the petitioner and learned counsel for the respondents. 4. The record of these cases show that while these applications are pending, the respondents herein filed E.P. No.26 of 2007 to execute the ex parte decree in O.S. No.142 of 2000 granted in their favour and after giving notice and sufficient opportunity to the petitioner, ultimately as per the orders of the executing court, sale deed was executed and registered in favour of the respondents on 02.4.2008. Subsequently, by a further order the executing court also directed delivery of possession and on 23.4.2008 the Amin of the Court delivered physical possession of the schedule property to the first respondent. By virtue of the ex parte decree therefore the respondents have obtained registered sale deed as well as possession of the schedule property. 5. While so, these applications to set aside the ex parte decree and for restoration of suit were taken up and rejected by the trial court under the impugned order dated 25.8.2008. 6. The learned counsel for the respondents has placed stress on the conduct of the petitioner as explained and detailed in their counter as well as their non-participation in the execution proceedings referred to above. The petitioner’s counsel on the contrary submit that the reason for dismissal of the petitioner’s suits for default as well as ex parte decree in the respondents suit is clearly mentioned in the affidavit that their counsel reported no instructions without intimating the petitioner. That part of the petitioner’s averments are not controverted in the counter and the knowledge to the petitioner is attributed on account of a connected criminal case C.C. No.7 of 2003 pending between the parties before the criminal court. 7. The impugned order, however, shows that the court below has really not considered the sufficiency of the cause shown by the petitioner, but has rejected the applications on the basis of conduct of the petitioner prior to 12.12.2006 i.e., the date of passing of ex parte decree and dismissal of the suits. The court below also rejected the application by concluding that many adjournments were taken by the petitioner earlier and even costs were not paid justifying setting them ex parte and dismissal of their suits for default. 8. It is well settled that in considering the applications of this nature, the court below must confine itself to examination as to whether sufficient cause is made out by the petitioner. The decisions of the Supreme Court as well as this court which were cited before the court below clearly supported the contentions of the petitioner, but the court below has erroneously distinguished those decisions on the ground of quantum of delay in those decisions and the present applications are different or on the ground that fact situation in the said decision and the facts of the present case are not similar. The court below has clearly committed error in not appreciating the ratio of the decisions cited before it by the petitioner, as facts in any two cases will never be identical. The fact therefore remains that the petitioner could not participate on account of their counsel reporting no instructions without their knowledge and secondly the subsequent proceedings in the execution petition has no relevance, when the petitioner has already filed respective applications in all three suits as early as on 07.3.2007, whereas, execution proceedings were taken up and appearance for the first time was ordered only on 22.3.2007. It is no doubt true that the petitioner has not participated in the execution proceedings nor has shown any urgency or inclination to get the present application disposed of before the executing court considers passing of further orders. However, as on the date of applications i.e., 07.3.2007 the subsequent event namely the execution proceedings and various orders passed therein had not intervened. On the date of application therefore sufficient cause was made out by the petitioner warranting opportunity to the petitioner to contest these proceedings on merits. 9. In view of the above, it is just and proper to condone the delay and with the consent of both the counsel the application for setting aside the ex parte decree in so far as O.S. No.142 of 2000 is concerned as well as the application to set aside the order of dismissal for default in O.S. No.81 of 2001 and O.S. No.167 of 2001 are allowed by setting aside impugned orders in all the three suits. All three suits shall stand restored to the file of the learned Junior Civil Judge, Thamballapalle, for disposal on merits in accordance with law. The court below shall therefore fix a date for cross-examination of P.W.1 in O.S. No.142 of 2000 and on the dates so fixed the petitioner shall proceed with the cross-examination and further trial without any further loss of time. 10. In normal circumstances, consequences of setting aside the ex parte decree would result in restitution in favour of the petitioner herein, however keeping in view the conduct of the petitioner in allowing the execution proceedings and further orders therein to pass and non-participation in the execution proceedings even when the court below passed orders for execution and registration of sale deed as well as delivery of possession, disentitles the petitioner from seeking benefit of restitution merely because the ex parte decree is now set aside. The respondents shall therefore be entitled to remain in possession of the schedule property in accordance with registered sale deed already executed in their favour by the executing court, however, the sale deed as well as the possession so delivered to the respondent shall be subject to final orders in the suits. 11. All the three revision petitions are allowed accordingly. The trial court shall make endeavour to hear and dispose of the suits as expeditiously as possible, preferably, within six months from today. No order as to costs. ____________________________ VILAS V. AFZULPURKAR, J Date: October 20, 2011. Note: Despatch the order copy within a week. //B.O./ BSB