The court affirmed that mere lack of knowledge due to negligence does not justify condoning an extensive delay in responding to an ex parte decree.

COMMON JUDGMENT:

Sole defendant in Suit preferred present Civil Revision Petition and Civil Miscellaneous Appeal aggrieved by two separate orders of even dated 23.01.2024, passed in I.A.No.38 of 2019 and I.A.No.165 of 2020 in O.S.No.41 of 2014 on the file of the Court of VII Additional District Judge, Gudur, respectively, rejecting the prayer for condoning delay of 1165 days in filing the petition for setting aside ex parte decree, and consequently, the application filed under Order IX Rule 13 CPC for setting aside ex parte decree, came to be dismissed as infructuous.

2. For the sake of convenience, parties herein are referred to as they were arrayed in the Suit before the trial Court.

3. Brief facts of the case are as follows:

O.S.No.195 of 2013 on the file of the Court of Principal District Judge, Nellore, was filed by the plaintiff for recovery of an amount of Rs.19,26,400/- with interest against the defendant. The said amount was claimed on account of breach of the arrangement had between plaintiff and defendant for buyback of Emu eggs. The trial Court initially ordered notice and issued summons on 25.10.2013. On 22.11.2013 when the matter was called, counsel entered appearance and filed vakalat for defendant and sought time for filing written statement. The matter was adjourned to 21.02.2014. As neither written statement was filed nor there was any representation for defendant, the defendant was set ex parte and the matter was posted to 28.03.2014 for plaintiff’s evidence. However, the Suit was advanced and taken up on 28.02.2014 and was transferred to the Court of the VII Additional District Judge, Gudur, on point of jurisdiction. Accordingly, the Suit was received and renumbered as O.S.No.41 of 2014 and entertained by the VII Additional District Judge, Gudur, on 26.03.2014, for proceeding further with the matter. It appears the matter was, thereafter, proceeded with and ultimately, the Suit came to be decreed on 12.08.2015. Later, plaintiff being decree holder filed execution proceedings in E.P. No.3 of 2016 on the file of the same Court. After receipt of summons in the said E.P., it is stated that the defendant came to know about the ex parte decree and had immediately engaged new counsel and entered appearance in the said E.P. for contesting the matter. The defendant, thereafter, filed I.A.No.38 of 2019 under Section 151 CPC r/w. Section 5 of the LIMITATION ACT seeking to condone delay of 1165 days in filing petition for setting aside ex parte decree. In the said petition, though the plaintiff asserted that the Suit was transferred from the Court of the Principal District Judge, Nellore, to the Court of the VII Additional District Judge, Gudur, on 28.03.2014, notice was ordered to both parties, no such notice was ever served or received by the defendant, therefore, passing of ex parte decree is vitiated, by taking advantage of such ex parte decree, execution proceedings were sought to be pressed into. Only after receipt of summons in the said execution proceedings on 27.10.2018, having come to know about ex parte decree, steps were initiated to file application under Order IX Rule 13 CPC seeking for setting aside ex parte decree along with application to condone the delay of 1165 days in filing such application. The defendant also filed written statement along with the aforesaid application to show bona fides.

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4. Both these applications were opposed by the plaintiff by filing counters. In the counter, it is pleaded that the defendant had knowledge of initiation of Suit as it was represented by Counsel by filing Vakalat before the Court