ORDER :

This Civil Revision Petition is filed by the petitioner/defendant assailing the orders dated 31.10.2019 in I.A.No.563 of 2017 in O.S.No.32 of 2016 on the file of the learned Additional Junior Civil Judge, Jangaon.

2. Application in I.A.No.563 of 2017 was filed by the defendant under Section 5 of Limitation Act to condone the delay of 52 days from 23.10.2017 to 12.12.2017 in filing an application to set aside the ex-parte decree dated 23.09.2017. The trial Court having considered the rival contentions dismissed the said application. Feeling aggrieved by the same, the defendant has filed this Civil Revision Petition.

3. Heard learned counsel for the petitioner and the respondent. The submissions made on either sides have received given due consideration of this Court.

4. For the sake of convenience, the parties are referred to as plaintiff and the defendant as arrayed in the original suit.

5. The plaintiff has filed O.S.No.32 of 2016 for recovery of possession and removal of structures over the suit schedule land in Sy.No.516/AA, situated at Eravennu Village, Palakurthy Mandal, Warangal District. As per the record, on 17.02.2016, the defendant appeared, failed to file written statement in spite of several adjournments. Trial Court has also imposed costs. Finally the defendant was set ex-parte on 27.01.2017. Thereafter on recording ex-parte evidence and considering the material available on record, ex-parte decree was passed by the trial Court on 23.09.2017.

6. After obtaining decree, the plaintiff has filed EP No.60 of 2017 for execution of the decree. Thereafter, the present application is filed on 13.12.2017 by the sole defendant alleging that he is unnecessarily made as party to the suit. In-fact, the said house property belongs to his son and that without making him as a party, plaintiff illegally claimed the house property of his son, the above case was posted on 27.01.2017 for his written statement and on that day, he could not present before the Court due to ill-health and as such, he could not give instructions to the counsel for filing the written statement. When he recently contacted his counsel, he was informed about the ex-parte decree dated 23.09.2017. Accordingly, prayed to set aside the ex-parte decree by condoning the delay. Thus, there was a delay of 52 days in filing an application under Order 9, Rule 13 of CPC and the defendant has prayed to condone the said delay of 52 days from 23.10.2017 to 12.12.2017 in filing the application to set aside the ex-parte decree dated 23.09.2017.

7. It is pertinent to mention that no oral or documentary evidence is adduced before the trial Court, no material is placed to show that the petitioner was either sick or suffering from ill-health and unable to give instructions to his counsel during the relevant period. At the cost of repetition, it is stated that suit summons were served on the defendant for his appearance on 17.02.2016, till 27.01.2017 he failed to file the written statement and on that day since the defendant failed to file the written statement and also failed to pay the costs, he was set ex-parte and thereafter, almost after eight months i.e. on 23.09.2017 ex-parte decree was passed.

8. It is submitted by the defendant that on 27.09.2017 he was sick and unable to give instructions to his counsel. Later he contacted his counsel before filing this application and that on 12.12.2017 he was informed that ex-parte decree was passed. Be it stated that, subsequent to the ex-parte decree, the plaintiff has filed E.P.No.60 of 2017 for execution of the said decree and it is only after filing the execution petition, the defendant has come forward and filed this application under Section 5 of Limitation Act along with another application under Order 9, Rule 13 of CPC to set aside the ex-parte decree passed against him.

9. In this context, I may refer to the principles laid down by the Hon’ble Supreme Court in Esha Bhattacharjee Vs. Mg.Commit. of Raghunathpur Nafar Academy an