( 1 ) THE petitioner, second defendant in O. S. No. 13/90 on the file of the Court of Subordinate Judge, Penukonda, filed this Revision Petition against the order dt. 30-10-1996 passed by the learned Subordinate Judge in I. A. No. 50/95 in the above suit, wherein the application to condone the delay of 71 days in filing tile application under Order IX Rule 13 of C. P. C. was dismissed by holding that the Judgment dated 13-12-1994 in the suit is on merits and hence the application under Order IX Rule 13 of C. P. C. is not maintainable and as such this application for condonation of the delay in filing the application is not maintainable.

( 2 ) THE learned Counsel appearing for the respondents raised a preliminaryobjection that no revision can lie against an order passed by the lower Court under Section 5 of the Limitation Act (for short, the Act) and the petitioner has to file an appeal against the order as the dismissal of the application under section 5 of the Act amounts to dismissal of the application filed under order IX Rule 13 of C. P. C. The above contention was raised by the respondents, counsel on the basis of a judgment of this Court in Divisional Engineer (Operations), APSEB (Urban) Power House, Nizamabad and others vs. Shaik mohammed. It is also his case that as the ex parte judgment of the trial Court happened to be on merits, the application under Order IX Rule 13 filed by the petitioner is a misconceived one.

( 3 ) TO appreciate the rival contentions of the parties a little factual background is required.

( 4 ) THE first respondent herein filed a suit O. S. No. 13/90 against the Districtcollector and the petitioner who was working as Executive Engineer, Roads and Buildings, Dharmavaram, Anantapur District, claiming compensation of about Rs. 30,000/- for alleged demolition of his premises bearing No. 1-388 on penugonda - Bangalore National Highway No. 7. In the suit, the Executive engineer was made as a party defendant in the name by attributing mala fides to him. It is not known how the Court permitted the respondent to file a suit for recovery of damages against the petitioner in his personal capacity while the act alleged against him is attributable to his official capacity.

( 5 ) BE that as it may, while the District Collector was represented by thegovernment Pleader the petitioner seemed to have engaged a private lawyer by name B. Sankaranarayana Rao to defend him and a written statement was filed on his behalf on 2/-8-1990. Thereafter, the petitioner seemed to have been transferred to Tirupati and there was no communication from his Counsel about the progress the case. The petitioner seemed to have visited Penugonda to attend the marriage of a near relative in the month of March, 1995 and in his enquiries he came to know that his Counsel died on 28-6-1994. In his , further enquiry he came to know that he was set ex parte on 2/-9-1994 and thereafter the trial Judge by his order dated 13-12-1994 while dismissing the suit against the District Collector decreed the sui t against the petitioner herein personally for Rs. 30,000/- as prayed for. Immediately, he filed two application on 14-3-1995 one under Order IX Rule 13 C. P. C. to set aside the ex parte decree passed in O. S. No. 13/90 and another one I. A. No. 50/95 under Section 5 of the act to condone the delay of 71 days. Unless the delay in filing the application under Order IX Rule 13 of C. P. C. is condoned that application cannot be numbered as per law. The Subordinate Judge dismissed the application i. A. No. 50/95 by his order dated 30-10-1996.

( 6 ) I have gone through the order of the Court below. The reasons given by the learned Subordinate Judge for dismissal of the application are - (i) that even after the petitioner was set ex parte on 2/-9-1994 his predecessor in office continued the trial for a considerable time and ultimately passed order on 13-12-1994, as such it amounts to a judgment pronounced on merits; (ii) that the dec