THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.818 and 820 of 2010 and CRPMP Nos.5566 and 5567 of 2010 Dated:08th November, 2009 CRP No.818 of 2010: Between: 1. Kadari Kishan Rao & Ors. …Petitioners and 1. Vakiti Harinivas Reddy & Ors. …Respondents *** CRP No.820 of 2010: Between: 1. Kadari Kishan Rao & Ors. …Petitioners and 1. Vakiti Pushpamma & Ors. …Respondents *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY C.R.P.Nos.818 and 820 of 2010 and CRPMP Nos.5566 and 5567 of 2010 COMMON ORDER: These two revisions are directed against the common order, dated 02.02.2010, passed in I.A.Nos.1460 and 1461 of 2009 in O.S.No.34 of 1997 on the file of the Senior Civil Judge, Bhongir, respectively, whereby and whereunder the learned Senior Civil Judge allowed the applications filed under Order 9, Rule 13 r/w. Sec.151 CPC to set aside the ex parte decree dated 10.04.2001 passed in O.S.No.34 of 1997. More precisely, CRP No.818 of 2010 is filed against the order passed in I.A.No.1460 of 2009 and whereas, CRP No.820 of 2010 is filed against the order passed in I.A.No.1461 of 2009. 2. Since the issue involved in both the revisions is one and the same, they are being heard together and disposed of by this common Order. 3. Background facts in a nutshell leading to filing of these two C.R.Ps. by the plaintiffs in O.S.No.34 of 1997 on the file of the Senior Civil Judge, Bhongir, are: a) Vakiti Deva Reddy and Vakiti Madhusudhan Reddy filed O.S.No.300 of 1984 on the file of the Principal District Munsif, Bhongir against Vakiti Ramaswamy Reddy and others for partition and separation possession of 1/16th share in the suit schedule property and also for cancellation of registered sale deeds Nos.1227/80, 1228/80, 1229/80, 1230/80 and 1231/80, dated 18.08.1980, of Sub- Registrar, Bhongir, to the extent of their shares. The suit filed by Vakiti Deva Reddy and Vakiti Madhusudhan Reddy ended in compromise. Accordingly, suit came to be decreed in accordance with the terms of compromise by judgment dated 31.03.1997. Kadari Kishan Rao, Kadari Shailendra and Kadari Rajendra filed O.S.No.34 of 1997 on the file of the Senior Civil Judge, Bhongir against Vakiti Deva Reddy and 30 others for declaration of title in respect of the land covered under registered sale deed dated 06.01.1982 executed by Vakiti Malla Reddy-5th defendant. Defendants 13, 16, 17, 25 and 29 died during pendency of the suit and the other defendants except defendant No.23 remained ex parte. The guardian ad litem of D23 alone contested the suit. The trial Court framed the following issues: 1) Whether the plaintiffs are entitled for declaration of title and possession as prayed for? 2) Whether plaintiffs are entitled for perpetual injunction against defendant Nos.5 to 9 and 24 to 29? 3) To what relief? On behalf of the plaintiffs, one witness was examined and 21 documents were marked. On behalf of the D23, neither ocular nor documentary evidence was adduced. b) Learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiffs are entitled for declaration of title as prayed for and thereby decreed the suit of the plaintiffs, by judgment dated 10.04.2001. c) D5 Vakiti Malla Reddy died on 15.07.2002. His Legal Representatives viz., Vakiti Harinivas Reddy, Vakiti Sugunamma and Vakiti Suresh Reddy filed I.A.No.1460 of 2009. Vakiti Harinivas Reddy has sworn to the affidavit filed in support of I.A.No.1460 of 2009. He pleaded in the affidavit that his father Malla Reddy engaged a counsel in the suit to resist the claim. But, his father could not pursue the proceedings due to his pre-occupation as government employee and subsequently, his father died on 15.07.2002. The petitioners came to know about the passing of decree only on 23.10.2009 when they received notices from the office of the Tahsildar. For better appreciation, I may refer para.3 of the affidavit filed in support of the petition, which reads as hereunder: “3. I submit that we have been in possession and enjoyment of the suit lands in Sy.No.599 of an extent of Ac.1.23 gts. situated at Kondamadugu Village, Bibinagar Mandal, Ranga Reddy District. I submit that the Tahsildar, Bibinagar Mandal, caused a notice upon me in an application made before him for mutation of names in respect of the suit lands. I submit that after receiving notice from the office of the Tahsildar, I came to know about the above suit and decree passed therein. I submit that the decree was passed in the above suit on 10.04.2001 without notice and knowledge to me. I further submit that I came to know about passing of the decree only on 23.10.2009 when received notice from the office of the Tahsildar. I submit that the present petition is filed seeking to set aside the exparte decree within 30 days from the date of knowledge about passing of the decree.” D.18 Vakiti Pushpamma, D19 Vakiti Ramma, D20 Vakiti Indira, D21 Vakiti Srilath, D22 Vakiti Narsimha Reddy and D23 Vakiti Anita filed I.A.No.1461 of 2009 to set aside the ex parte decree dated 10.04.2001 passed in O.S.No.34 of 1997. Smt.V.Pushpamma has sworn to the affidavit filed in support of I.A.No.1461 of 2009. She stated in the affidavit that they came to know of the decree passed in O.S.No.34 of 1997 only on 23.10.2009 when they received notice from the office of the Tahsildar. For better appreciation, I may refer paras.1 and 2 of the affidavit filed in support of I.A.No.1461 of 2009, which read as hereunder: “1. I am the petitioner herein and the defendant No.18 in the above suit, as such, well aware of the facts of the case. The petitioners No.2 to 4 are my daughters and the petitioner No.5 is my son, as such, I am authorized to depose on their behalf. I submit that the Respondents filed the above suit against us and others for declaration of title and perpetual injunction. I submit that summons were not served upon us in the above suit. It is pertinent to state the Respondents/Plaintiffs furnished non-existing addresses for service of summons upon us. Consequently, there was no service of summons upon us. I submit that the Respondents for the summons published in Krishna Patrika an unknown telugu daily. I submit that Krishna Patrika is an insignificant and little known telugu daily. I submit that I have never been a subscriber of Krishna Patrika. I submit that I have not seen the summons published in Krishna Patrika and it has no circulation in Bhongir. 2. I submit that the Tahsildar, Bibinagar Mandal, caused a notice upon me in an application made before him for mutation of names in respect of the suit lands. I submit that after receiving notice from the office of the Tahsildar, I came to know about the above suit decree passed therein. I submit that the decree was passed in the above suit on 10.04.2001 without notice and knowledge to me. I further submit that I came to know about passing of the decree only on 23.10.2009 when received notice from the office of the Tahsildar. I submit that the present petition is filed seeking to set aside the exparte decree within 30 days from the date of passing of the decree.” d) The plaintiffs filed counter resisting the applications filed by the legal representatives of the 5th defendant and also the application filed by the defendants 18 to 23. The plaintiffs have taken a specific stand in the counter that Krishna Patrika in which publication of summons appeared is a State wide Telugu daily newspaper. The plaintiffs stated in the counter that the petitions filed by the defendant without there being any application to condone the delay are not maintainable. Neither D5 Vakiti MallaReddy nor D9 Vakiti Yadi Reddy through whom the petitioners claiming rights got any share in the subject matter of the suit as per the compromise decree passed in O.S.No.300 of 1984, in which case, their rights are in no way prejudiced by the ex parte decree and thus, the petitions filed by them to set aside the ex parte decree do not deserve for consideration. It is also stated in the counter that the petitioners have not explained as to when they received notice from the Tahsildar, Bibinagar. e) Neither party adduced evidence in support of their respective contentions. f) The learned Senior Civil Judge, on hearing the counsel appearing for the parties, and on considering the material brought on record, proceeded to set aside the ex parte decree in-toto by a common order dated 02.02.2010. Paras.12 and 13 of the said order need to be noted and they are thus: “12. The other petitioners in I.A.No.1460/09 alleged that, their father appeared through Advocate and later failed to file written statement and consequently decree was passed. Admittedly, the father of the petitioners in I.A.No.1460/09 was died after the suit. The petitioners in I.A.No.1460/09 are not parties in the main suit, but they are affected parties in consequent to the passing of exparte decree against their father. Therefore, certainly the petitioners can ask for setting aside the decree by filing separate application to implead them as parties in this suit. The petitioners filed separate application to implead them as parties in the suit and the same is pending and it will be ordered only after the decree in question is set aside. It is stated by the petitioners that, their father was a Government servant and in view of his repeated transfers he could not prosecute the case diligently and they are in possession and enjoyment of the plaint schedule property till now. It is already observed that, the decree was passed in respect of Ac.8-08 gts. of land which is a compact block situated in three bit numbers in survey No.599 and therefore, once the decree is set aside, it cannot be divided in respect of specific persons and it shall be set aside against all the persons and the entire extent. In view of finding that, the petitioners in I.A.No.1461/09 are entitled to ask for setting aside the decree, this petitioners are also entitled to ask for setting aside the decree and consequently both the petitions are to be allowed. 13. A decree can be set aside either in whole or in part. In the present case the decree is passed in respect of Ac.8-08 gts. of land in compact block with one survey number with three bit numbers and the decree cannot be set aside separately in respect of particular person and therefore, the decree is liable to be set aside against all the persons. It is well established law that, there need not be any separate application for condoning the delay in filing Order 9, Rule 13 CPC application and this court can consider the same while passing orders in the connected applications. Since the petitioners in I.A.No.1460/09 filed this application to set aside the exparte decree, it is fit case to impose condition while setting aside the decree.” The common order passed in I.A.Nos.1460 and 1461 of 2009 in O.S.No.34 of 1997 is assailed in these two revisions. 4. The petitioners/plaintiffs filed CRPMP No.5566 and 5567 of 2010 under Order 22, Rule 4 (4) CPC seeking to exempt them from the necessity of substituting the legal representatives of the deceased defendant Nos.3, 9, 11, 15, 25, 26 and 28. The contesting respondents/defendants filed counter-affidavit resisting the applications. 5. Heard learned counsel appearing for the petitioners/plaintiffs and learned counsel appearing for the contesting respondents/defendants. 6. Learned counsel appearing for the petitioners/plaintiffs submits that I.A.Nos.1460 and 1461 of 2009 are filed by the legal representatives of the defendants 5 and 9. Legal representatives of the 9th defendant came to be impeladed in the suit itself, but they did not choose to contest the claim of the plaintiffs and whereas, 5th defendant, despite his engaging counsel, did not choose to file written statement resisting the claim of the plaintiffs. Therefore, the petitioners cannot be permitted to contend that the decree has been passed in O.S.No.34 of 1997 without putting the 5th defendant and legal representatives of the 9th defendant on notice. Learned counsel also contends that even as per the compromise decree passed in O.S.No.300 of 1984, no part of the land claimed by the petitioners under registered sale deed executed by the 5th defendant fell to the share of either 5th defendant or 9th defendant, in which case, the legal representatives of the defendants 5 and 9 cannot have any grievance. Leaned counsel took me to the compromise decree passed in O.S.No.300 of 1984, which finds place at page no.22 of the material papers in CRP No.820 of 2010. Much emphasis has been laid on paras.7 and 11 of the compromise decree, which read as hereunder: “7. That the 5th defendant, V.Malla Reddy is hereby allotted to the extent of Ac.0-06 gunta, Ac.0-07 gts. and 0-03/4th guntas wet land out of Sy.No.476/5, 477/5, 442/7 respectively, total Ac.0-13 ¾ guntas wet land and Ac.1-19 guntas Ac.1-10 guntas out of Sy.No.433/3 and 436/7 total land Ac.2-29 guntas dry land and also Ac.0-21 guntas dry area out of Sy.No.583/7 on the road side total in all Ac.3-23 ¾ guntas wet and dry towards his 1/36th share and more clearly shown in schedule-G of the Commissioner report and as shown in orange colour in the sketch map both are part and parcel of this decree. 11. That the 9th defendant K.Yadi Reddy (since died) his LRs.33 to 38 herein are hereby allotted 0-28 ¾ guntas and 0-01 ¼ guntas out of Sy.Nos.461/3 and 442/17 respectively total 0-30 guntas wet land and 1-00, 4-12 guntas, 1-00 out of Sy.Nos.469/11, 535/1, 540/2 total Ac.6-12 guntas dry land and also 1-00 guntas dry area out of Sy.No.583/9 on road side total in all Ac.8-10 ½ guntas dry and wet land towards his 1/16th share and more clearly shown in the schedule-K of the Commissioner Report and as shown in red colour in the sketch map both are part and parcel of this decree.” He would also contend that the legal representatives of the D5 and D9 filed the applications before the trial Court to set aside the ex parte decree without bringing on record the legal representatives of some of the defendants, who are no more, by the time they moved the applications and therefore, the petitioners herein by way of abundant caution moving the applications under Order 22, Rule 4 CPC to exempt them from necessity of substituting legal representatives of the deceased defendants. In support of his contentions, learned counsel placed reliance on the following decisions: 1) Zahirul Islam v.Mohd. Usman & Ors.[1] 2) T.Gnanavel v.T.S.Kanagaraj & Anr.[2] 7. I n Zahirul Islam’s case (1 supra), the Supreme Court after referring Order 22, Rule 4 CPC, observed in para.6 as hereunder: “A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place.” 8. In T.Gnanavel’s case (2 supra) the Supreme Court held that if exemption, which is provided under Order XXII, Rule 4(4) is obtained from the Court before the delivery of the judgment, in that case, it would be open to the Court to exempt the plaintiff from bringing on record the heirs and legal representatives of the defendant even if, the defendant had died during the pendency of the suit as if the judgment was pronounced by treating that the defendant was alive notwithstanding the death of such defendant and shall have the same force and effect as if it was pronounced before the death had taken place. The Court is empowered to exempt a plaintiff from the necessity of substituting the heirs and legal representatives of any such defendant who has failed to file a written statement or who, having filed it, had failed to appear and contest the suit at the time of hearing of the same, but such an exemption can only be granted before the judgment is pronounced and in that case only, it can be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as it was pronounced before the death had taken place. Where, admittedly, exemption was obtained after the judgment was pronounced, the provision of Order XXII, Rule 4(4) of the CPC would not be attracted. 9. Learned counsel appearing for the contesting respondents submits that applications under Order 22, Rule 4(4) CPC have to be moved before pronouncement of the judgment in the suit and the said provision cannot be made applicable to the present proceedings. Learned counsel by reading the provision submits that it is applicable to the proceedings in the suit and not to the proceedings in the revision petitions. 10. I do not see any substance in his contention. The respondents 1 to 3 in CRP No.818 of 2010 and respondents 1 to 5 in CRP 820 of 2010 being the applicants before the trial Court, failed to get the legal representatives of some of the deceased defendants on record, therefore, they cannot be permitted to contend that the applications moved by the petitioners herein to dispense with notice to the legal representatives of the deceased defendants are not maintainable. Indeed it was the obligation of the contesting respondents herein to bring on record the legal representatives of the deceased defendants in the applications filed by them under Order 9, Rule 13 CPC. Since the trial Court set aside the decree even against the non-applicants also, the petitioners herein are compelled to move these two applications. Therefore, I am inclined to allow CRPMP Nos.5566 and 5567 of 2010. Accordingly, CRPMP Nos.5566 and 5567 of 2010 are allowed. 11. Learned counsel appearing for the petitioners contends that the petitioners filed documents before the trial Court in support of their contention that the contesting respondents herein were aware of the passing of the decree in O.S.No.34 of 1997 even much prior to 23.10.2009, but the trial Court, without referring the documents placed on record proceeded to adjudicate the issue. Learned counsel refers the Photostat copy of the memo filed in Form No.7 before the trial Court, which finds place at page no.67 of the material papers in CRP No.820 of 2010. It also contains the endorsement of the counsel appearing for the contesting respondents herein to the effect that he received copy of the documents. The documents filed by the petitioners herein in the trial Court are: 1) Certified copy of final decree in O.S.No.300 of 1984, dated 31.03.1997 along with sketch maps (3 in number); 2) Xerox copy of order passed by R.D.O., Bhongir, in Case No.C/2297/03, dated 29.9.2003; 3) Xerox copy of order passed by M.R.O., Bibinagar in Proc.No.B/2290/2002, dated 22.2.2005. 12. It is also contended by the learned counsel that the applications under Order 9, Rule 13 CPC filed by the contesting respondents after 8 years of passing of the decree in O.S.No.34 of 1997 are barred by limitation and there being no prayer to condone the delay, the trial Court ought to have dismissed the applications in limini. In support of his submission, reliance has been placed on the judgment of the Supreme Court in Mahabir Singh v. Subhash & Ors.[3], wherein the Supreme Court held that under Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. 13. Per contra, learned counsel appearing for the contesting respondents submits that the contesting respondents came to know of the passing of the decree in O.S.No.34 of 1997 on 23.10.2009 and they filed the applications under Order 9, Rule 13 within 30 days of the knowledge and in which case, the petitions filed by them are well within time. He would also contend that no separate application for condonation of delay is required if the delay is otherwise explained on the basis of an affidavit filed in support of the applications. In support of his submissions, reliance has been placed on the judgments of this Court in Andari Govindaiah v. Vemula Venkatamma (died)[4] and Daniel Padma Rao v. Heroid Earnest Lawrence Davey[5]. 14. Order 9, Rule 13 CPC reads as hereunder: 13. Setting aside decree as ex parte against defendant:- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside: and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided 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: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. Explanation:- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.” 15. The period of limitation of 30 days prescribed under Article 123 of the Limitation Act to set aside the ex parte decree begins to run when the defendant had the knowledge of the decree and not from the date of the decree. It is the case of the contesting respondents herein that they came to know of the decree passed in O.S.No.34 of 1997 on 23.10.2009 when they received notice from the office of the Tahsildar, Bibinagar. This fact has been specifically contradicted by the plaintiffs by filing counter. The petitioners herein took the plea that the contesting respondents herein were aware of the proceedings initiated before the Mandal Revenue Officer, Bibinagar as well as the Revenue Divisional Officer, Bhongir, in the year 2005 itself. For better appreciation, I may refer para.6 of the counter filed by the petitioners herein in I.A.No.1460 of 2009 before the trial Court, which reads as hereunder: “In reply to para.3 of the affidavit it is specifically denied that the petitioners are in possession and enjoyment of suit land in Sy.No.599 to an extent of Ac.1- 23 gts, in support of their contention they did not file any document or any revenue record to show that they are in possession of the suit land. As a matter of fact we are in possession and enjoyment of the suit land ever since the date of execution of the Regd. Sale deed in our favour by father of petitioners in the year 1982. That we were not made a party to the O.S.No.300 of 1984 as such we challenged said decree and judgment under this suit and subsequently this suit is decreed by set asiding the decree and judgment passed in O.S.No.300 of 1984 only in respect of suit land which was duly purchased by