IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTIETH DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.Nos.4246 & 4346 OF 2010 Between: Smt.Guniganti Sulochana Bai and another …Petitioner A n d Patha Dharmaraj …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.Nos.4246 & 4346 of 2010 COMMON ORDER: C.R.P.No.4246 of 2010 is directed against the order dated 22.07.2010 in I.A.No.3102 of 2009 in O.S.No.No.20 of 2008, on the file of the District Judge, Nizamabad, wherein the said application filed by the petitioners herein under Section 5 of the Limitation Act seeking condonation of delay of 245 days in filing the application to set aside the ex parte decree dated 29.01.2009 was dismissed. 2. C.R.P.No.4346 of 2010 is directed against the order dated 22.07.2010 in I.A.No.3103 of 2009 in O.S.No.No.20 of 2008, on the file of the District Judge, Nizamabad, wherein the said application filed by the petitioners herein under Order IX Rule 13 CPC, was dismissed in view of the dismissal of I.A.No.3102 of 2009. 3. Heard both sides. Perused the record. 4. The respondent herein filed the suit against the petitioners for recovery of a sum of Rs.13,46,722/- under Order XXXVII CPC. According to plaintiff, Guniganti Eshwarnath Rao, husband of D-1 and father of D-2 borrowed Rs.12,70,000/- from the plaintiff on 09.04.2008 and executed a promissory note and in spite of repeated demands, he did not repay the amount and that on 12.06.2008 the said Eshwarnath Rao died in a motor vehicle accident and the defendants have succeeded to his estate. Summons in the suit were issued to the defendant on 05.09.2008, but they were refused by the defendants on 12.09.2008. The defendants have entered appearance on 25.09.2008 through counsel. Admittedly, they have not filed any application seeking leave to defend within 10 days from the date of service of summons. As such, the trial Court passed a decree in plaintiff’s favour on 29.01.2009. Subsequently, the defendants filed the application I.A.No.3103 of 2009 under Order IX Rule 13 CPC for setting aside the decree. They also filed I.A.No.3102 of 2009 under Section 5 of the Limitation Act seeking condonation of delay of 245 days in filing the other application. According to the petitioners/ defendants, as the deceased Eswharnath Rao died in a motor vehicle accident, the defendants were in shock and mental agony and that they have not received any summons or notice and hence there was delay in filing the application for setting aside the ex parte decree. The respondent/plaintiff filed counter opposing the application and contending that when the bailiff made efforts to serve the attachment warrant and summons, the petitioners refused to receive the same and the notices sent by Court through RPAD were also returned with an endorsement ‘unclaimed’. By the impugned order, the trial Court dismissed the application holding that the defendants had notice of filing of the suit by the plaintiff as they refused to receive the notices sent under Order XXXVIII Rule 5 CPC. Aggrieved by the same, the present civil revision petitions are filed. 5. In the affidavit filed in support of the application, the 1st defendant stated that she was not aware of the filing of the suit because she has not received any notice or summons. It is significant to note that the affidavit is silent as to on what date D-1 came to know about the disposal of the suit though the affidavit mentions that the ex parte decree was passed on 29.01.2009. Admittedly, the 1st defendant entered appearance through counsel by name Sri Rajkumar Subedar on 25.09.2008 shortly after refusal of the notices. The material on record shows that notices in the suit were issued on 05.09.2008 and they were returned as refused by the defendants on 12.09.2008 and the notices sent by Court through RPAD were also returned as ‘unclaimed’. The defendants have not entered appearance and have not sought leave to defend within 10 days as required under the provisions of order XXXVII CPC. It is not as though the defendants were not aware of the passing of the decree till the date of filing the petition to set aside the ex parte decree. Even on 25.09.2008, D-1 entered appearance through the Advocate and about four months latter, the ex parte decree came to be passed. No steps were taken by the petitioners/defendants during the said period of four months to contest the suit with the permission of the Court. The petitioners have also not filed any application for setting aside the ex parte decree immediately or within reasonable time after passing of the ex parte decree. The application I.A.No.3103 of 2003 was filed with a delay of 245 days. The delay is sought to be explained on the ground that the petitioners have not received notices and so they were not aware of the passing of the decree. But the material on record shows that the petitioners have, in fact, refused to receive the notices and after the property was attached, they entered appearance through counsel but did not take steps to contest the suit and remained ex parte. The delay of 245 days in filing the application for setting aside the ex parte decree is, therefore, not satisfactorily explained. As rightly observed by the trial Court, the petitioners have suppressed the material facts in the affidavit by not disclosing the fact that they engaged an Advocate viz., Sri Rajkumar Subedar who filed vakalat on 25.09.2008. As the petitioners have refused to receive the notices and they indulged in suppression of material facts in the affidavit and the delay of 245 days in filing the petition has not been satisfactorily explained, the trial Court has rightly refused to condone the said delay. The impugned orders passed by the trial Court in due exercise of the discretionary power do not, therefore, call for any interference. 6. In the result, both the civil revision petitions are dismissed. There shall be no order as to costs. __________________ G.V.SEETHAPATHY 20th September, 2011 Lrkm