IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3115 OF 2011 Between : Gudipati Bhaskar ... PETITIONER A N D Pulla Venkata Vijaya Bhaskar …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.3115 OF 2011 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 27.04.2011, in I.A.No.260 of 2011 in O.S.No.142 of 2010 on the file of the II Additional Senior Civil Judge, Nandyal, whereunder and whereby, the application filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to set aside the ex parte decree, dated 07.12.2010, was allowed. 2. Learned counsel for the petitioner/plaintiff contended the application under Order IX Rule 13 CPC has not been filed within one month from the date of decree; that without filing an application under Section 5 of the Limitation Act, 1963 (for short, ‘the Act’), an application under Order IX Rule 13 CPC is not maintainable and hence, he prays to set aside the impugned order. 3. None appears for the respondent in spite of service of notice. 4. The suit was filed for recovery of money. The defendant, who is the respondent herein, engaged an Advocate in the suit and thereafter, the suit was posted to 12.11.2010 for filing of written statement. On that day, the respondent herein has not filed the written statement, as he was unwell. On 25.12.2010 the respondent approached his advocate, who informed him that the suit was decreed ex parte on 07.12.2010, for non-filing of the written statement. 5. It is not in dispute before this Court that the respondent engaged an Advocate after receipt of summons and filed Vakalat on 14.07.2010 and thereafter, the respondent had taken four adjournments for filing of written statement in the suit. 6. Under Order VIII Rule 1 CPC the defendant has to file the written statement within thirty days from the date of receipt of summons in the suit. No reason is assigned for non-filing of the written statement within the above time. The only ground taken by the respondent for non-filing of an application under Section 5 of the Act the is that the suit was decreed ex parte on 07.12.2010 and therefore, within one month thereafter, the application under Order IX Rule 13 CPC has to be filed. It is not in dispute before this Court that the Advocate, who appeared on behalf of the respondent, filed an affidavit for setting aside the ex parte decree and that was returned. Thereafter the affidavit of the respondent was filed. The ground that from the date of affidavit filed by the respondent, the period of limitation has to be counted, cannot be accepted. 7. However, there were some lapses on the part of the respondent in filing the written statement within the time prescribed under law. In spite of granting four adjournments, the respondent has not filed the written statement. Order IX Rule 13 CPC deals with setting aside of an ex parte decree passed against the defendant. If the defendant satisfies the Court that summons was not duly served upon him, or he was prevented by sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the decree as against him and appoint a day for proceeding with the suit. In this case, the respondent has not been prosecuting the case diligently in spite of granting four adjournments. The respondent has not filed the written statement after lapse of thirty days, but later on he filed the written statement. While setting aside an ex parte decree against the defendant, the Court has very vide discretion in imposing appropriate terms and conditions. The words “upon such terms as to costs payment into Court or otherwise as it thinks fit” in Order IX Rule 13 CPC make it amply clear that such terms may relate to deposit of entire decretal amount or part thereof by the defendant. Considering the facts and circumstances of the case, half of the decretal amount can be directed to be deposited to the credit of the suit. Therefore, the impugned order is modified directing the respondent to deposit 50% of the decretal amount within a period of six (6) weeks from the date of receipt of a copy of this order. Thereafter the ex parte decree would be set aside. 8. With the above direction, the Civil Revision Petition is disposed of. There shall be no order as to costs. _______________ K.C.BHANU, J NOVEMBER 04, 2011. YVL