Common order

These two revisions are directed against the common order dated 20.03.2006, passed by the I Additional Senior Civil Judge, Nellore. By the said common order, the applications in I.A. Nos. 578 and 579 of 2005 in O.S. No. 88 of 2004, filed by the respondents-defendants, one seeking to set aside the ex parte decree dated 19.08.2004 and the other seeking to enlarge time for filing written statement by condoning the delay of 429 days, was allowed.

Few facts necessary for the disposal of the C.R.Ps. may be noted, and they run thus:

The respondents-defendants, in the affidavit filed in support of the I.A.s., stated that they entrusted the vakalat to one Sri. Sanjeeva Kumar, Advocate. During the pendency of the suit, he died. According to them, they requested the counsel to file written statement on their behalf, but for the reasons best known to him, he did not file. There is no negligence on their part. The period of limitation to file the written statement was over by 12.07.2004. Due to non-filing of written statement, ex parte decree was passed in the suit against them on 19.08.2004. It is specifically averred that due to lapses on the part of the previous counsel, who died long prior to the present applications, the ex parte decree was passed, and they cannot be penalized for the mistakes on the part of their counsel. Thus, they sought to set aside the ex parte decree dated 19.08.2004 and to receive the written statement by enlarging the time till the date of filing the written statement.

The petitioners-plaintiffs contested the I.As., denying the averments made by the respondents-defendants in the affidavit filed in support of the I.A. They specifically contended that it was false to aver that the previous counsel engaged by the respondents-defendants was bedridden for months together without attending the Court. They did not choose to file any material to substantiate their claim to set aside the ex parte decree. They filed E.P. No. 23 of 2005 for execution of the ex parte decree. It is also stated that the respondents filed E.A. to grant stay of the execution proceedings, and the same was dismissed. Initially, the respondents-defendants filed I.A. No. 302 of 2005 under Section 5 of the Limitation Act, 1963 to condone the delay in filing the application to set aside the ex parte decree. Subsequently, by withdrawing the said I.A., they filed the present applications, without filing any application to condone the delay in filing application to set aside the ex parte decree. According to them, in the absence of an application to condone the delay in filing application to set aside the ex parte decree, the application to set aside the ex parte decree is not maintainable and is liable to be dismissed. It was further contended by them that the respondents-defendants were negligent in prosecuting the case. They filed unnecessary cases against the petitioners-plaintiffs. They must be diligent enough in prosecuting the matter. There are no bona fides in the I.As., and as such, there is no reason to exercise judicial discretion to set aside the ex parte decree passed in their favour.

Heard the learned counsel for the petitioners-plaintiffs and the learned counsel for the respondents-defendants.

These two C.R.Ps. admittedly, are filed by the petitioners-plaintiffs assailing the legality of the orders passed by the Court below allowing the applications filed by the respondents-defendants – one setting aside the ex parte decree 09.08.2004 and the other enlarging the time to file written statement, subject to payment of costs of Rs.1,000/- on each of the applications.

The main ground urged by the petitioners-plaintiffs in support of the C.R.Ps. is that in the absence of an application under Section 5 of the Limitation Act, 1963 to condone the long delay of 429 days in filing application to set aside the ex parte decree, the application filed by the respondents-defendants, under Order IX Rule 13 C.P.C., to set aside the ex