IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION Nos.3605 & 3607 of 2010 CIVIL REVISION PETITION No.3605 of 2010 Between: G.Jeevarathnam Naidu ..... PETITIONER AND Indian Bank, Diguvamagham Branch, Rep.by its Branch Manager and 7 others .....RESPONDENTS CIVIL REVISION PETITION No.3607 of 2010 Between: G.Jeevarathnam Naidu ..... PETITIONER AND Indian Bank, Diguvamagham Branch, Rep.by its Branch Manager and 7 others .....RESPONDENTS The Court made the following: THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION Nos.3605 & 3607 2010 COMMON ORDER: Petitioner is the Judgment Debtor No.4 in E.P.5/2008 in O.S.32/1998 filed by the 1st respondent bank on the file of the District Judge-cum-Chairman, Motor Accidents Claims Tribunal, Chittoor. Respondents Nos.2 to 8 are the other Judgment Debtors along with the petitioner. 2. It appears that the said suit O.S.32/1998 was decreed long back and the decretal amount payable to the 1st respondent bank was not paid. The 1st respondent bank filed E.P.5/2008 for execution of the decree by sale of the properties of the Judgment Debtors. It is stated that the petitioner herein was set ex parte in the said E.P. by order dated 02.07.2009. The petitioner wanted to file an application to set aside the ex parte order dated 02.07.2009, but that there was delay of 260 days in filing such application. Therefore, the petitioner filed E.A. under Sec.5 of the Limitation Act to condone the delay of 260 days in filing application under Or.21 Rule-106 of Civil Rules of Practice to set a s i d e ex parte order dated 02.07.2009 contending that 8th respondent/Judgment Debtor was looking after the case on his behalf, but he met with an accident on 22.05.2007 by falling under wall and he was not in a position to move from the bed. He was under impression that his brother and other judgment debtors are looking after the matter and contesting the case on his behalf also. There were some misunderstandings between him and other family members and he became impaired physically and helpless. All the other judgment debtors developed aversion towards him and they did not inform about the stage of the case and therefore, he was set ex parte, and in filing the set aside application there is delay of 259 days. He has also filed another petition under Or.21 Rule-86 r/w.Sec.151 CPC to set aside the sale of the E.P.schedule property held on 19.02.2010 on the ground that the mandatory provisions have not been complied with. 3. The Court below dismissed the application filed to condone the delay under Sec.5 of the Limitation Act. In view of the dismissal of the said application, and as the petitioner was set ex parte, the other application filed to set aside the sale was also dismissed. Aggrieved by the same, both these civil revision petitions are filed. 4. The learned counsel for the petitioner submits that the learned Judge has not dealt with anything about merits of the case as to whether the delay was properly explained or not, but he dismissed the application filed under Sec.5 of the Limitation Act on the ground that the E.P.proceedings are not pending and the E.P.schedule property was already sold and the purchaser was also sold the same to some others pursuant to the auction conducted on 19.02.2010. The Court below also held that as the petitioner was already set ex parte he is not permissible to question the said auction, and if the delay is condoned it amounts to setting aside the sale. 5. I have considered the contentions of the leaned counsel for the petitioner and perused the records. The application filed by the petitioner under Sec.5 of the Limitation Act was only returned by the office of the learned District Judge taking an objection that the said petition is not maintainable on the ground that after service of notice the petitioner was set ex parte and auction was conducted on 19.02.2010 and the same was also confirmed and therefore, the petition under Or.21 Rule-106 CPC is not maintainable. 6. No doubt an application under Or.21 Rule-106 CPC is maintainable to set aside the ex parte order, but I am of the opinion that in the instant case the E.P.schedule property was already auctioned and sale was confirmed. When the E.P. itself was discharged it cannot be said that the E.P. is still pending. When the E.P. is not pending, question of setting aside the ex parte order and condonation of delay does not arise. Therefore, I am of the opinion that the learned District Judge rightly upheld the office objections. 7. Both the Civil Revision Petitions are accordingly dismissed. The original material papers in CRP.3607/2010 may be returned to the counsel for the petitioner. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 13.08.2010 Dsr