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NYAPATHY VIJAY
Vadlapoodi Venkata Suresh Babu – Appellant
Versus
Gadamsetty Kiran Kumar – Respondent
ORDER :
NYAPATHY VIJAY, J.
1. The present Civil Revision Petition is filed questioning the Order dated 21.10.2020 in I.A. No.121 of 2020 in O.S. No.14 of 2014 in C.F. No.1569 of 2019 passed by the I Additional District Judge, Nellore, SPSR Nellore District.
2. The Petitioners are the Defendants. The suit O.S. No.14 of 2014 was filed by the Respondent/Plaintiff for recovery of money on the basis of the Mortgage Deed said to have been executed by the Petitioners/Defendants. A preliminary decree was passed ex parte on 23.01.2017.
3. While so, the Petitioners/Defendants filed I.A. No.121 of 2020 seeking to set-aside the ex parte decree under Order 9, Rule 13 CPC, wherein the reason given by the Petitioners/Defendants was that though they had engaged an Advocate, they could not file their Written Statement due to the illness of Petitioner No. 3. Due to illness and old age related ailments, the Petitioner No. 3 had to shift her family to Kaza Village of Guntur District for treatment. It was only when their Advocate informed about the suit being decreed ex parte, the present application was filed to set-aside the ex parte decree and this application was returned by the trial Court, as to how
Imposing costs as a condition to set aside an ex parte decree is unjust, especially when the preliminary decree is set aside, and the final decree does not render the revision infructuous.
Imposing onerous deposit conditions for setting aside exparte decrees is unwarranted and should be proportionate to ensure access to justice for the defendants.
Conditions for setting aside exparte decrees must be reasonable and facilitate participation in proceedings without imposing disproportionate deposit requirements.
The court maintains discretion in imposing costs in setting aside ex parte judgments, with considerations for delay and securing decree amounts clarified.
The court has discretion to set aside ex-parte decrees and impose conditions, but the conditions should not be onerous or excessive.
The applicability of Article 136 of the Limitation Act supersedes Article 137 for final decree applications, allowing exclusion of prior litigation periods in calculating limitation.
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