THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION NO:1462 & 5428 OF 2010 DATE:19.09.2011 BETWEEN MESSRS SARITHA SUGARS LTD. …PETITIONER AND MESSRS SIMHAPUR MUTUALLY AIDED MULTIPURPOSE CO OP SOCIETY LTD …RESPONDENT. THIS COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION NO:1462 & 5428 OF 2010 COMMON ORDER: Heard the learned counsel for the petitioner and the learned counsel for the respondent. C.R.P.No:5428 of 2010: This revision petition is filed by the petitioner aggrieved by the order dated 10.8.2010 made in I.A.No:1082 of 2010 in O.S.No:23 of 2004 on the file of the 1st Additional District Judge, Nellore dismissing the application filed under section 5 of the Limitation Act seeking to condone the delay of 158 days in filing the application under order 9 rule 13 C.P.C., which is filed seeking to set aside the exparte decree dated 13.9.2009. C.R.P.No:1462 of 2010: This revision petition is filed aggrieved by the order dated 15.2.2010 passed in E.P.No:5 of 2010 in O.S.No:23 of 2004 on the file of the 1st Additional District Judge, Nellore order for attachment of an amount of Rs.22,77,116/- lying in the Current account bearing No:152010200011477 of the Judgment debtor. In both the revision petitions, the petitioner is the judgment debtor and the respondent is decree holder. Since the issue involved in both the revision petitions, is inter related and parties are one and the same, they are disposed of by a common order with the consent of both the learned counsel. The plaintiff-decree holder filed O.S.23 of 2004 on the file of the 1st Additional District Judge, Nellore for recovery of an amount of Rs.13,22,508/- being the interest at the rate of 19% p.a due on the delayed payment made by the defendant for the purchase of the fertilizers from him. By order dated 1.9.2009, the defendant was set exparte and on 30.9.2009, an exparte decree was passed. While so, an application in I.A.No:1082 of 2010 was filed by the defendant under section 5 of the Limitation Act seeking to condone the delay of 158 days in filing the application under order 9 rule 13 C.P.C in setting aside the exparte decree dated 30.9.2009 on the ground that by mistake and over sight, there was no representation on 1.9.2009, on which date the defendant was set exparte. Having not satisfied with the reason assigned by the defendant and having perused the counter filed by the decree holder, the Court below dismissed the said application. Aggrieved by the same, C.R.P 5428 of 2010 is filed. Basing on the Exparte decree dated 30.9.2009, the decree holder filed E.P.5 of 2010 under order 21 rule 52 C.P.C directing the Court below to issue order of attachment for an amount of Rs.22,17,116/- from out of the amount of Rs.32,51,696/- lying in the current account bearing No: No:152010200011477 of the Judgment debtor. By order dated 15.2.2010, the Court below ordered for attachment of Rs.22,77,116/-. Aggrieved by the same, C.R.P.1462 of 2010 is filed. While ordering notice before admission on 8.4.2010 in C.R.P 1462 of 2010, this Court granted interim suspension in C.R.P. M.P. 1974 of 2010 to the extent of Rs.12,77,116/- (Rupees twelve lakhs, seventy seven thousand one hundred and sixteen only) while making it clear that the attachment Rs.10.00 lakhs (Rupees ten lakhs only) shall continue until further orders and the attachment shall be subject to the order that may be passed under order IX Rule 13 of C.P.C by the Court below. Heard the learned counsel. As far as C.R.P 5428 of 2009 is concerned, it is submitted by the learned counsel appearing on behalf of the defendant that the plaintiff filed the suit for recovery of an amount of Rs.13,22,508/- towards the interest on the delayed payment in connection with the transaction that took place between the plaintiff and the defendant and the delay for payment is ranging from 15 to 500 days pertaining to the period from 2nd April, 2000. Meanwhile, the defendant- Industry sustained loss and the matter was referred to the B.A.F.R and on that count, the matter underwent adjournment several times. Due to the facts and circumstances narrated in the application, there was delay of 158 days and the reasons assigned in the application would constitute a sufficient cause for condoning the delay. But, the Court below has failed to consider the same. Therefore, the order of the Court below warrants interference by this Court. On the other hand, it is submitted by the decree holder that the affidavit filed in support of I.A.1082 of 2010, does not contain the reason, which constitutes a sufficient cause to condone the delay. Apart from that, the delay was also not properly explained and therefore, the Court below has rightly dismissed the application. In so far as C.R.P 1462 of 2010 is concerned, the learned counsel for the defendant submits that consequent to the exparte decree that was made on 30.9.2009, the decree holder filed the execution proceedings and the Court below without issuing any notice, has directly ordered for attachment of the amount in question and therefore, the order impugned herein suffers from illegality and irregularity. On the other hand, it is submitted by the learned counsel for the decree holder that since the execution proceedings are initiated within one year, the issuance of prior notice does not require and as such, the order impugned does not warrant any interference by this Court. In so far as C.R.P No:1462 of 2010 is concerned, though the learned counsel on either raised the rival contentions, but in view of the conditional order passed by this Court in C.R.P. M.P.No:1974 of 2010 in C.R.P.No:1462 of 2010 and the quantum of decreetal amount as well as the amount of Rs.32,51,696/- lying in the current account bearing No: No:152010200011477 of the Judgment debtor, both the learned counsel have conceded for an amicable conclusion being arrived at by this Court. Considering the facts and circumstances of the case coupled with the nature of the proceedings, without expressing any opinion on the merits of the case, I feel it just and proper to direct the petitioner-judgment debtor to deposit an amount of Rs.14.00 lakhs (rupees fourteen lakhs only) to the credit of the suit in O.S.No:23 of 2004 on the file of the 1st Additional District Judge, Nellore, within a period of four (4) Weeks from the date of receipt of a copy of this order and on such deposit, it is open for the respondent-decree holder to withdraw the same on furnishing an undertaking to the satisfaction of the Court below. It is also made clear that in default to comply with the above conditional order, it is open for the Court below to pass appropriate orders in accordance with law and proceed with the matter in the execution proceedings. Accordingly, C.R.P.1462 of 2010 is disposed of. No costs. In so far as C.R.P 5428 of 2010 is concerned, consequent to the complying with the conditional order passed in C.R.P 1462 of 2010, I.A.1082 of 2010 filed under section 5 of the Limitation Act seeking to condone the delay of 158 days in filing the application under Order 9 Rule 13 C.P.C., stands allowed subject to the condition of the petitioner-judgment debtor paying Rs.1,000/- (Rupees one thousand only) towards the Legal Services Authority within one (1) Week from the date of compliance of the conditional order in C.R.P 1462 of 2010. Accordingly, C.R.P.5428 of 2010 is disposed of. No costs. At this stage, both the learned counsel sought for disposal of the main suit expeditiously in case of its restoration. In view of the year of the suit and the nature of the proceedings, I feel it just and proper to direct the Court below to dispose of the suit in the event of its restoration, within a period of four (4) months from the date of receipt of a copy of this order. ______________________ Justice G.Chandraiah. Gurc. Date:19.09.2011 THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION NO:1462 & 5428 OF 2010 DATE:19.09.2011