GOPALA KRISHNA TAMADA, J.

( 1 ) THIS appeal is directed against the order dated 30-10-1996 passed by the learned subordinate Judge, Peddapuram, wherein the court below dismissed I. A. No. 17 of 1987 in O. S. No. 13 of 1986, a petition under order IX Rule 13 C. P. C.

( 2 ) THE respondents herein filed the above suit. In the said suit, as the appellants herein were absent, they were set ex parte on 16-4-1986. Subsequently on 3-7-1986, an ex parte decree was passed as prayed for in favour of the respondents herein. Against the said ex parte decree, the appellants have chosen to file an application under Order IX rule 13 C. P. C. and as there was delay of 23 days in filing the said application, they also filed I. A. No. 1090 of 1986 under Section 5 of the Limitation Act. The court below accepted the reasons for the delay and accordingly allowed I. A. No. 1090 of 1986 by its order dated 19-1-1987 on imposing terms. Thereafter, the present petition i. e. , (LA. No. 17 of 1987) which was filed under order IX Rule 13 C. P. C. , was numbered. But the court below refused to set aside the ex parte decree and accordingly dismissed the said LA. Hence, this appeal.

( 3 ) IT is mainly contended by the learned counsel for the appellants that though sufficient reasons are shown for their absence on 3-7-1986, supported by medical evidence, the court below refused to set aside the ex parte decree. Learned counsel states that the court below ought to have given an opportunity to the appellants to pursue the matter on its merits.

( 4 ) ON the other hand, the learned counsel for the respondents submitted that the appellants did not approach this court with clean hands as they filed an interlocutory application under Order IX Rule 7 C. P. C. to set aside the ex parte order dated 16-4-1986 and when it was returned by the office with some objections, without pursuing the same, they have chosen to file a separate petition under Order IX Rule 13 C. P. C to set aside the ex parte decree dated 3-7-1986. As such, it is contended that the order passed by the court below dismissing the present application is perfectly justified and it does not warrant any interference.

( 5 ) NO doubt it is true that the appellants herein were set ex parte on 16-4-1986 and an application under Order IX Rule 7 C. P. C. was presented immediately thereafter and the said application was returned. But, before the said application was represented, an ex parte decree was passed in the suit on 3-7-1986. In view of the fact that the court below passed an ex parte decree subsequently i. e. , on 3-7-1986, it is immaterial whether the petition filed earlier under Order IX Rule 7 C. P. C. is pressed or not. Even if the court sets aside the order dated 16-4-1986, the appellants had to necessarily file another application under order IX Rule 13 C. P. C. for setting aside the ex parte decree which was passed on 3-7-1986. Therefore, non-mentioning of the factum of the appellants filing application to set aside the ex parte order dated 16-4-1986 in the present application i. e. , I. A. No. 17 of 1987, does not amount to suppressing any material fact. Therefore, I am not inclined to accept the contention advanced on behalf of the learned counsel for the respondents that the appellants have approached this court with unclean hands.

( 6 ) ANOTHER aspect which is prompting this court to allow the present appeal is that having allowed I. A. No. 1090 of 1986, a petitionjunder Section 5 of the Limitation act, and condoned the delay of 23 days in filing the present LA. , the court below ought not to have refused to set aside the Ex parte decree. The explanation offered by the appellants is that immediately after coming to know of the ex parte decree, the first appellant was asked to engage an advocate to take steps for getting the ex parte decree set aside but as he fell ill and was under treatment of one Dr. P. T. Naidu during the period from 20-7-1986 to 23-8-1986, the appellants herein were constra

Click Here to Read the rest of this document