THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY. C.R.P.No. 5393 of 2010. ORDER: This C.R.P. is directed against the order dt. 7.10.2010 in I.A.No. 710 of 2008 in O.S.No. 20 of 2008 on the file of the Senior Civil Judge, Nirmal whereby the said application filed by the petitioner under Section 5 of the Limitation Act to condone the delay of 92 days in filing the petition to set aside the ex parte decree, was dismissed. Heard the learned Counsel for the petitioner. None appeared for the respondent though notice was served. The respondent herein filed suit for recovery of a sum of Rs. 3,49,942/- from the petitioner/defendant. Notices issued to the petitioner/defendant in the suit were returned as unclaimed. The petitioner was therefore set ex parte and ex parte decree was passed on 2.5.2008. Subsequently, the petitioner filed the petition for setting aside the ex parte decree along with I.A.No. 710 of 2008 to condone the delay of 92 days in filing the petition to set aside the ex parte decree. The respondent/plaintiff opposed the petition. The learned Senior Civil Judge by the impugned order dismissed the application holding that sufficient cause is not made out to condone the delay of 92 days. The learned Counsel for the petitioner would contend that prior to filing the suit, the respondent/plaintiff sent a notice to the petitioner/defendant to his address at Ashoknagar, Hyderabad and in the said address, it is noticed by the respondent/plaintiff himself that the defendant is residing at NTPC, Ramagundam and the said notice was returned as unclaimed as the petitioner was not residing at Ashoknagar, Hyderabad and was residing at NTPC, Ramagundam. The certified copy of envelop through which the legal notice was issued by the respondent/plaintiff prior to filing the suit, would show that the respondent/plaintiff was aware of the fact that the petitioner/defendant was residing at NTPC, Ramagundam and the same was also mentioned on the envelop. But however, the notice was sent to the address at Ashoknagar, Hyderabad. Even after the said notice was returned as unclaimed, the plaintiff has not chosen to issue further notice to the defendant’s address at NTPC, Ramagundam but filed the suit furnishing the same address at Ashoknagar, Hyderabad and the suit notices were also returned as unclaimed. Inasmuch as the plaintiff was aware of the fact that the defendant was residing at NTPC, Ramagundam, he ought to have sent the notice to the defendant’s address at NTPC, Ramagundam at least after the notice sent to the address at Ashoknagar, Hyderabad was returned as unclaimed. Thus there is every force in the contention of the petitioner that he is not aware of the issuance of the legal notice by the respondent/plaintiff prior to filing the suit and also filing of the suit as he was not residing at Ashoknagar, Hyderabad and he is residing at NTPC, Ramagundam and the respondent/plaintiff was aware of the same. In those circumstances, it is considered that the petitioner has furnished sufficient grounds to condone the delay of 92 days in the petition for setting aside the ex parte decree. Having regard to the fact that the respondent/plaintiff has not chosen to take notices to the petitioner’s address at NTPC, Ramagundam though he is aware of the fact that the petitioner was residing at NTPC, Ramagundam, it is considered that the delay of 92 days in filing the petition for setting aside the ex parte decree can be condoned and the same is accordingly condoned, but however on payment of costs of Rs. 500/- ( Rs. Five hundred only) by the petitioner/defendant to the respondent/plaintiff within a period of four weeks from today. On such payment of costs, the petition filed by the petitioner in I.A.No. 710 of 2008 for condoning the delay of 92 days stands allowed and the trial court would be at liberty to dispose of the petition seeking to set aside the ex parte decree on its own merits. In default of payment of costs within the time stipulated, the order in I.A.No. 710 of 2008 passed by the trial court stands confirmed. The C.R.P. is accordingly disposed of. There shall be no order as to costs. _____________________________ G.V.SEETHAPATHYY, J 29.12.2010. issue c.c. in three days. B/o Krb. THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY. C.R.P.No. 5393 of 2010. ORDER Dt. 29.12.2010.