THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.4188/2011 Date of Order: 21-10-2011 Between: Kanchi Tirupathamma ..Petitioner and Sajja Sasikanth ..Respondent The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY CRP No.4188/2011 Oral order: The defendant in OS No.388/2004 filed this revision under Section 115 of the Code of Civil Procedure to revise the orders passed by the Principal Junior Civil Judge, Nuzvid dt. 18-8-2011 in IANo.574/2011 in OS No.388/2004, whereby petition filed by the defendant under Sec. 5 of the Limitation Act to condone the delay of 151 days in filing the petition to set-aside the ex parte decree passed against the defendant has been dismissed. The revision petitioner herein is the defendant and the respondent herein is the plaintiff in OS No.388/2004. It is not in dispute, the defendant filed written statement in the suit filed by the plaintiff by contesting the matter. For failure to cross- examination of P.W.1, the defendant remained ex parte and an ex parte decree was passed on 16-2-2010. Therefore, she filed petition under Order 9 Rule 13 CPC for setting aside the decree passed against her. As there is a delay in filing the said petition, she filed the present petition under Sec.5 of the Limitation Act to condone the delay of 151 days in filing the petition to set-aside ex parte decree dt. 16-2-2010 stating that she went on medical leave from 30-1-2010 to 28-2-2010 as per the advise of the Doctor; and she came to know about passing of the decree on 14-8-2010 when she approached her counsel who told her that he informed passing of the decree by way of post card in the month of February, 2010, but the same could not be served on her as she was on medical leave, and therefore, the delay should be condoned. The trial court by the impugned order dt. 18-8-2011 dismissed the petition holding that the doctor certificate issued by one MBBS Doctor of Samatha Nursing Home, Nuzvid does not disclose with what exact disease of illness the defendant suffered with during the period from 30-1- 2010 to 28-2-2010 and no prescription was filed by the defendant to show that she took treatment during that period in the said nursing home. Further, the explanation offered by the defendant with regard to non- receipt of the postcard sent by her counsel is not convincing. It is not in dispute, on passing the ex parte decree against the defendant, the plaintiff filed the execution petition for recovery of the decretal amount and salary of the petitioner/defendant was attached. It is stated that more than Rs.10,000/- has been recovered from the salary of the petitioner/defendant. In view of the fact of the petitioner retiring shortly, the petitioner/defendant should be given an opportunity to contest the suit claim. On petitioner/defendant depositing a further sum of Rs.25,000/- (Rs. Twenty five thousand only) plus suit and EP costs within three (3) weeks from to-day, IA No.574/2010 filed under Section 5 of the Limitation Act and petition filed under Order 9 Rule 13 CPC for setting aside the ex parte decree passed against the defendant shall stand allowed. Consequently, OS No.388/2004 shall be restored to its file subject to petitioner/defendant appearing before the court on the date fixed for cross- examination of P.W.1, and to proceed with the cross-examination. Failure to comply with either of the conditions, the above IAs shall stand dismissed. On deposit of the amount, as directed above, the respondent/plaintiff is at liberty to withdraw the same, and such withdrawal will be subject to result in the suit. The Civil Revision Petition is accordingly allowed. No costs. _______________ A.GOPAL REDDY, J. Dt.21-10-2011 kmr