THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2366 of 2010 Date: 25.11.2011 Between: M/s. Shree Santosh Agenices, Hyderabad, and another … Petitioners/ Plaintiffs AND M/s. Backbone Project Limited, Ahmedabad … Respondents/ Defendant THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2366 of 2010 ORDER: The petitioners are the plaintiﬀs. The sole respondent is the defendant. The defendant ﬁled a petition in I.A.No.5826 of 2007 under Section 5 of the Limitation Act to condone the delay in ﬁling a petition under Order IX Rule 13 CPC to set aside t he ex parte decree in O.S.No.155 of 2005. The defendant laid the petition under the provisions of the Limitation Act, which was allowed by the trial Judge. Aggrieved by the same, the present revision is laid. 2. The case has lengthy legal chronology. The suit was filed by the plaintiffs for recovery of ` 12,18,327/-. On 13.04.2006, the suit was decreed ex parte. The defendant has its corporate oﬃce at Ahmedabad, Gujarat State. Consequently, the decree holders got the decree transmitted to Ahmedabad. 3. The decree holders subsequently ﬁled E.P.No.524 of 2007 at Ahmedabad. It was a petition seeking for the attachment of the movables. Notice was served upon the judgment debtor on 27.07.2007. Subsequently, attachment of the movables was ordered. 4. On 19.09.2007, the judgment debtor furnished an undertaking that movables will not be removed from the premises. On the basis of the undertaking, the attachment of the movables was differed. The judgment debtor also undertook to pay the entire decretal amount within one month therefrom. However, the judgment debtor did not abide by the undertaking to discharge the decretal debt within one month. Consequently, warrant for the attachment of the movables of the judgment debtor was issued in October, 2007. When the Field Assistant tried to attach the movables of the judgment debtor on 26.10.2007, the judgment debtor issued a pay order for ` 3,00,000/-. The judgment debtor also issued at the same time a post dated cheque dated 05.11.2007 for a sum of ` 14,13,538/-. Thus, the entire decretal amount as on the date of the attachment was taken care of by the judgment debtor through pay order and post dated cheque. The cheque indeed was subsequently honoured. The decretal amount is now lying in the Court of the Chief Judge, City Civil Courts, Ahmedabad to the credit of E.P. No.524 of 2007. 5. The judgment debtor later ﬁled a petition in I.A.No.5826 of 2007 to condone the delay in ﬁling a petition under Order IX, Rule 13 CPC to set aside the ex parte decree. Through the impugned order, the learned trial Judge condoned the delay. 6. It is the case of the judgment debtor that Sri Naresh Bhai Mackwana, an Oﬃcer-in-Charge, HR and General Administration of the defendant- Company was in-charge of the legal aﬀairs. While so, Mackwana who was suﬀering from heart ailment was frequently absenting himself from duty owing to ill-health. The summons in the suit was served upon Mackwana. However, Mackwana did not make over the same to the company oﬃcials on account of his ill-health leading to the defendant being set ex parte in the suit. Mackwana, subsequently, passed away. 7. It is the contention of the judgment debtor that the failure of the judgment debtor to appear before the trial Court was not on account of any deliberate conduct on his part and that it was on account of the inaction of Mackwana. The learned trial Judge recorded in the impugned order that where the entire decretal amount was deposited in the execution Court, it was a ﬁt case to condone the delay in ﬁling a petition under Order IX Rule 13 CPC. As rightly submitted by Sri P.V. Sanjeeva Rao, learned counsel for the decree holders, the fact that the judgment debtor deposited the entire amount is not a ground to condone the delay. From the aﬃdavit accompanying the petition, it is evident that Mackwana received suit summons as well. Consequently, the delay needs to be calculated from the date of ex parte decree. Barring the contention that Mackwana was unwell and later passed away, no reasonable cause was assigned by the judgment debtor to condone the delay. 8. At the same time, the gracing factor in favour of the judgment debtor is the deposit of entire decretal amount. Sri P. Madhusudan Kumar, learned counsel for the judgment debtor contended that where the decretal amount has already been deposited to the credit of E.P. No.524 of 2007 on the ﬁle of the Chief Judge, City Civil Courts, Ahmedabad, the suit claim is satisﬁed and that the petition to condone the delay, therefore, deserves to be allowed. It may be noticed that the plaintiﬀs as well as the defendant are business partners. Finances are compulsion for both of them. Every rupee counts for both sides for the utilization in the business venture. Amount lying in the Court indeed attracts interest, but if the money is in the hands of the decree holders, it would be put to more proﬁtable use by the decree holders. In this background, I do not consider that the deposit of the money to the credit of the execution Court safeguards the interest of the decree holders. 9. It would be just and proper to permit the decree holders to withdraw the money lying to the credit of the case subject to the condition that an ex parte decree deserves to be set aside. 10. Accordingly, the Civil Revision Petition is disposed of, allowing I.A.No.5826 of 2007 condoning the delay in ﬁling the petition under Order 9 Rule 13 CPC subject to the condition that the judgment debtor shall not question the withdrawal of the decretal money by the decree holders from the ﬁle of E.P.No.524 of 2007 on the ﬁle of the Chief Judge, City Civil Courts, Ahmedabad. There shall, however, be no order as to costs. _________________ K.G. SHANKAR, J Date: 25.11.2011 Isn