K.C. Bhanu, J.

1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed against the Order, dated 12.07.2006, passed by the II Additional District Judge, Guntur, in Civil Miscellaneous Appeal No. 28 of 2005, whereunder and whereby, the Order, dated 23.02.2005, in Interlocutory Application No. 916 of 2002 in Original Suit No. 88 of 2002 passed by the Senior Civil Judge, Gurazala, was set aside.

2. When the matter came up before the learned Single Judge of this Court, one of us (KCB, J), referred the matter to a Division Bench for authoritative pronouncement of Division Bench, in view of the conflicting decisions of two learned Single Judges of this Court whether against the Order dismissing the application filed under Section 5 of the Limitation Act, 1963 (for short, 'the Act') to condone the delay in filing any application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, 'CPC'), revision or appeal lies. Accordingly, the matter is placed before this Court by the Hon'ble Chief Justice.

3. Heard both sides.

4. Order IX Rule 13 CPC deals with the setting aside ex parte decree passed against the defendant. The rule enacts that where an ex parte decree is passed against a defendant, he may apply to the Court passing such decree to set it aside and if he satisfies the Court that the summons was not duly served upon him, or he was prevented by sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the decree as against him and appoint a day for proceeding with the suit. Article 123 of the Act provides to set aside a decree passed ex parte or to rehear an appeal decree or heard ex parte, the period of limitation is thirty days. Time from which period begins to run is the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. If an application has not been filed within the time prescribed under Article 123 of the Act, then the remedy of the party is to file an application under Section 5 of the Act. When an order is passed in a petition filed under Section 5 of the Act to condone the delay in filing an application under Order IX Rule 13 CPC, whether an appeal lies or Civil Revision Petition lies, is the question that falls for consideration before this Court.

5. In Divisional Engineer (Operations), APSEB (Urban), Power House, Nizamabad and others Vs. Shaik Mohammed, 1996 (3) ALT 365, wherein it is held thus:

"In other words, failure to condone the delay in filing the application under Section 5 of the Limitation Act tantamounts to dismissal of the petition under Order 9, Rule 13 C.P.C. by virtue of Section 3 of the Limitation Act. In effect an order passed under Section 5 of the Limitation Act would result in an order of dismissal of the petition filed under Order 9, Rule13 C.P.C. within the strict legal sense and the mandatory consequences become appealable under Order 43, Rule 1(d)C.P.C. In such a situation, dismissal of the petition under Section 5 of the Limitation Act would become redundant to think that a revision under Section 115 of C.P.C. lies. There is one more legal logic behind this proposition. There cannot be an application under Section 5 of Limitation Act unless an application under Order 9, Rule 13 C.P.C. is filed. If merely an application under Section 5 of the Limitation Act is permissible as an original petition, perhaps then if there is no provision for appeal under Order 43, Rule 1(d) C.P.C. perhaps a revision petition under Section 115 C.P.C. may lie. In such a situation, a proper construction of Order 9, Rule 13 C.P.C., Sections 3, 4 and 5 of Limitation Act and Article 123 of the Limitation Act would conclusively and legally confirm that no revision under Section 115 C.P.C. would either lie or become maintainable."

From the above decision, it is clear that the order passed in a petition filed under Section 5 of the Act is not a revisable order. Therefore,