IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2107 of 2009 Between: B. Chandrudu .. Petitioner AND M. Narayana and others .. Respondents ORDER: Heard Sri C. Raghu, learned counsel for the revision petitioner and Sri B. Nalin Kumar, learned counsel for the first respondent. None entered appearance for the second respondent though served with notice and respondents 3 to 8 were stated to be not necessary parties to this revision petition. The copies of the plaint in O.S.No.68 of 1995 on the file of Senior Civil Judge’s Court, Sangareddy, and the judgment therein dated 24-02-1999 show that the revision petitioner is the second defendant in the suit, who remained ex parte, suffering the judgment along with other defendants by which the suit was decreed against defendants 1 to 5 and 7 with costs. The revision petitioner filed a petition to set aside the ex parte decree along with a petition to condone the delay in filing the said petition on 03- 06-2008 alleging that he was not concerned with the firm that was sued and he was unaware of the proceedings in the suit. The summons in the suit purported to be served by substituted service by publication in a newspaper were not noticed by him and even the notice in E.P.No.93 of 2007 was served on one Sravan Kumar and not him. The execution petition was filed nine years after the judgment and decree and therefore, he was unable to file a petition to set aside the ex parte decree earlier. The trial Court, while dealing with the said petition to condone the delay in S.R.No.1519 of 2008, passed the impugned order dated 31-01-2009 stating that the judgment was passed after verifying the written statement of defendants 5 and 6 and when issues were framed and findings were given on merits, the remedy of the revision petitioner cannot be under an application to set aside the ex parte decree. The trial Court refused to entertain the plea that the revision petitioner, who did not participate in the trial, can maintain such a petition and rejected the petition to condone the delay. The revision petitioner assails the said order contending that insofar as he is concerned, the judgment and decree were ex parte and the petition under Order IX Rule 13 of the Code of Civil Procedure is perfectly maintainable. Order IX Rule 13 of the Code of Civil Procedure provides for a defendant against whom a decree was passed ex parte applying to the Court to have such ex parte decree set aside for any of the reasons specified in the Rule and the proviso therein makes it clear that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also. The said proviso read with Rule 11 of Order IX, which enables the Court to proceed with the suit even in the event of non-attendance of one or more of several defendants, clearly indicates the legislative intent to enable one of the several defendants also to have the remedy under Rule 13 insofar as such defendant alone is concerned, while the enabling Rule 11 empowers the Court to proceed with the suit even in the event of non-appearance of some of the defendants. Whether the decree is of such a nature that it has to be set aside only against that ex parte defendant or against all the defendants, is a question dependent on the nature and scope of the judgment and decree involved in the particular case. If so, without the necessity of burdening this order with any precedents and on the plain language of the relevant provisions, it can be concluded that the perception of the trial Court that the judgment in question has to be considered as a decided judgment on merits even against the revision petitioner cannot be considered to be correct or reasonable and if the claims of the revision petitioner are true, he cannot be debarred from approaching the Court with the appropriate applications. Therefore, without going into the truth or otherwise of the contentions of the revision petitioner about the reasons for the delay in applying to have the ex parte decree set aside and also the reasons for seeking the ex parte decree to be set aside under Order IX Rule 13 of the Code of Civil Procedure, the trial Court has to be directed to entertain the application filed under Section 5 of the Limitation Act to condone the delay and decide it on merits. In the result, the Civil Revision Petition is allowed and the order dated 31-01-2009 of the Senior Civil Judge, Sangareddy, in S.R.No.1519 of 2008 is set aside and the said Court shall take the said petition on file and determine the same in accordance with law on merits after giving every reasonable opportunity to both parties and the proceedings in E.P.No.93 of 2007 on the file of the said Court shall not be proceeded with further against the revision petitioner until the determination of the said petition on merits. _____________________ G. BHAVANI PRASAD, J Date: 23-10-2009 Ksn