1. This revision is filed against the order dated 31.5.2008 passed in I.A. No.1931 of 2004 in A.S. No. of 2004 on the file of the District Judge, Ongole, which is an application filed under Section 5 of the Limitation Act to condone the delay of 679 days in filing the appeal.

2. The suit O.S. No.106 of 1998 was filed for recovery of possession of the schedule property and for injunction by the first respondent and the petitioners herein are the defendants. The defendants filed a written statement contesting the suit. Since the first petitioner became mad and the second petitioner went to Hyderabad and he came to know on enquiry that an ex parte decree was passed on 26.3.2002, they filed an application on 14.8.2002 for condonation of delay of 111 days in filing the petition to set aside the ex parte decree and the same was dismissed on 02.7.2003. Against that order, C.R.P. No.6752 of 2003 was filed and it was also dismissed. Therefore, the regular appeal was filed after obtaining certified copies. After the dismissal of the C.R.P. on 02.4.2004 and consequently there is a delay of 679 days in filing the appeal. The respondents filed a counter contending that the first petitioner is a court bird and the petitioners were set ex parte on 10.8.1999, the plaintiff was examined on 01.9.1999 and the decree was passed subsequently on 26.3.2002.

3. The reasons putforth for condonation of the delay in filing the appeal are not proper. Since the earlier application was dismissed, this application for condonation of the delay on the same grounds is hit by the principles of res judicata. The learned District Judge, after considering the material on record and after considering the evidence of P.Ws.1 and 2, dismissed the application. Aggrieved by the said order, the present revision is filed.

4. The point for consideration is whether the order of the Court below in refusing to condone the delay in filing the appeal is proper?

5. The effort of the counsel for the respondents is that since the earlier application to set aside the ex parte decree after condonation of the delay has been dismissed, on the same grounds the present application is also filed and therefore the delay cannot be condoned. In fact, this argument found favour with the learned Judge. Further more, reliance is also placed on a decision in K. Srinivas v. K. Govind and others (2009 (3) ALD 720),which supports the contention of the respondents. Reliance is also placed on the decision of a Division Bench of this Court in Charminar Co-operative Urban Bank Limited, Hyderabad v. State Bank of Hyderabad, Gunfoundry, Hyderabad and another (2008 (3) ALD 320 (DB)),wherein the facts of that case when the ground of cause service of summons was found to be untrue, the Court dismissed the application. The above two decisions do not say that on principles of res judicata the plea is barred.

6. There is no dispute about the fact that as against an ex parte decree, a party has got a right to file an appeal or to apply to the Court to set aside the ex parte decree. To file an appeal is a statutory right given to the party. The reasons for setting aside ex parte decree and the conditions emphasized thereunder are quite different. While considering the claim for setting aside the ex parte decree, the Court is concern only with the cause for non-appearance on the date when the decree was passed. Whereas, when a statutory right is available in preferring an appeal, the considerations before the appellate court are quite different and the scope of decision in the appeal is wider than the scope of determination of an application under Order IX Rule 13 of the Code of Civil Procedure.

7. In order to apply the principles of res judicata or constructive res judicata it is needless to say that the earlier matter and the subsequent matter shall be competent to be tried by the same Court of competent jurisdiction. Evidently, the Court, which decides an application under Order IX Rule 13 CPC and