L. NARASIMHA REDDY, J.

( 1 ) DEFENDANTS in O. S. No. 202 of 1991 on the file of Junior Civil Judge, mahabubnagar are the petitioners herein. An application filed by them to condone the delay in presenting a petition under Order 9 rule 13 C. P. C. was dismissed by the Trial court. Hence this revision.

( 2 ) THE respondent tiled the suit for the relief of partition and separate possession of the suit schedule properties, in the year 1991. The father of the petitioners viz. , balappa and the father of the respondents viz. , Chandrappa are brothers. The petitioners filed their written statement. They pleaded that the suit schedule property is their self-acquisition and that a partition has already taken place between Balappa and Chandrappa, in relation to joint family properties. Initially, the suit was dismissed for default on 29. 1. 1997. It was restored on 13. 11. 1998. Soon thereafter, an ex parte preliminary decree was passed on 25. 11. 1998.

( 3 ) PETITIONERS filed an application under order 9 Rule 13 C. P. C. to set aside the ex parte preliminary decree dated 25. 11. 1998. Since there was delay in submitting the same, they filed IA No. 835 of 2003 under section 5 of the Limitation Act. They pleaded that they engaged an advocate viz. , sekhar Reddy in the suit in the year 1992 and the notice in application filed by the respondent under Order 9 Rule 9 C. P. C. to set aside the order dismissing the suit for default was served upon him. It is their case that the said advocate died in may 1988 even while the LA. was pending, and despite the same, the Trial Court proceeded with the matter without issuing any notice to them. They also alleged that on 3. 6. 1999 they received summons in i. A. No. 336 of 1999, filed for passing of final decree and they engaged Sri N. B. Venkatesh to represent them. According to them, their Counsel informed them to the effect that he would take necessary steps in the matter and as and when necessity arises he would intimate them through a letter. They contended that they did not receive any communication and ultimately when they found that a commissioner was visiting their property, they verified the matter with their counsel. He is said to have informed them that a letter addressed by him was not responded to, and soon thereafter, the petition is filed.

( 4 ) THE respondent filed a counter-affidavit resisting the application. According to her, the petitioners remained indifferent even after receiving the notice in IA No. 336 of 1999, in the final decree proceedings. She pleaded that such an enormous delay was not explained, much less to the satisfaction of the Court. Through the order under revision, the Trial Court dismissed the LA.

( 5 ) SRI K, Sitaram, learned Counsel for the petitioners, submits that the petitioners were vigilant and careful through out the proceedings, as is evident from the fact that they filed the written statement within the stipulated time. He submits that the petitioners were not conversant with the court procedure and soon after they received a notice in LA. No. 336 of 1999, they engaged an advocate to take necessary steps. He submits that the petitioners filed the affidavit of the advocate whom they engaged in LA. No. 336 of 1999 and it is clear that necessary steps could not be taken on account of communication gap between the said Counsel and the petitioners. He urges that though the delay may appear to be enormous, it is liable to be condoned, having regard to the facts of the case.

( 6 ) SRI K. Srinivas, learned Counsel for the respondent, on the other hand, submits that the very application filed by the petitioners was not maintainable, for the reason that two prayers namely the one for condonation of delay and the other to set aside the ex parte preliminary decree were made in it, contrary to Rule 55 of civil Rules of Practice. He submits that whatever may have been the circumstances for the petitioners in not being aware of the ex parte preliminary decree dated 25.

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