Failure to adequately explain a delay of 2,742 days to set aside an ex parte decree, despite proper service of summons, results in dismissal of the condonation application under Section 5 of the Limitation Act.

ORDER :

1. The present Civil Revision Petition is filed under Article 227 of Constitution of India assailing the order in I.A.No.710 of 2018 in O.S.No.148 of 2010, dated 15.04.2021 passed by learned Principal Junior Civil Judge, Huzurabad, filed under Section 5 of the LIMITATION ACT to condone the delay of 2,742 days.

2. Petitioners are the defendants and the respondent is the plaintiff in O.S.No.148 of 2010.

3. Learned counsel for the petitioners submits that the trial Court ought to have seen that summons/notices in O.S.No.148 of 2010 on the file of learned Principal Junior Civil Judge, Huzurabad are not served on the petitioners to enable them to appear before the Court and ought to have verified whether summons are served on the petitioners or not. The trial Court ought to have seen that there is sufficient cause in not approaching the trial Court within time to set aside the ex parte decree and the petitioners came to know about the ex parte decree in the RDO appeal where the respondent has filed a copy of the order passed in O.S.No.148 of 2010 dated 10.02.2011. Delay occurred in filing the petition in setting aside the ex parte decree is neither willful and nor wanton and prayed to set aside the impugned order.

4. Learned counsel for the respondent submits that the petitioners were served with the summons. But, due to non filing of the written statement, they were set ex parte. Thereby, the learned trial Court has passed a judgment and decree in his favour in O.S.No.148 of 2010, dated 10.02.2011.

5. The petitioners have stated in I.A.No.710 of 2018 that they have not received summons/notices from the Court in O.S.No.148 of 2010 and they recently came to know that respondent has filed an Appeal No.274 of 2017 before the RDO, Huzurabad. In the said appeal, their counsel has filed the counter and documents and the counsel on record has not properly advised them. It is further stated in I.A.No.710 of 2018 that petitioner No.2’s father was hospitalized and his father was suffering with lower backache (lumbage), Sciatica and joint pains and the Doctor has advised to take regular treatment and rest from January, 2010 till the date of filing the petition i.e., on 11.09.2018. Due to which, the petitioners are not aware of the decree passed by the Court in the said suit on 10.02.2011.

6. The respondent-plaintiff and his daughter has alienated the suit land to the petitioner No.2 – defendant No.2 by executing a simple sale deed and the same is mutated in his name and pass book is issued in his favour, which happened before filing of the suit, there is a delay of 2,742 days in filing the application to set aside the ex parte decree in O.S.No.148 of 2010, dated 10.02.2011 from 09.03.2011 to 10.09.2018.

7. The respondent has filed his counter and contended that the summons were served on the petitioners. They failed to file written statement and thereby they were set ex parte and finally the learned trial Court had disposed of O.S.No.148 of 2010 on 10.02.2011. No bona fide reasons are mentioned by the petitioners to condone the delay of 2,742 days. Hence, interference is not called for and prayed to dismiss the Civil Revision Petition.

8. Power of the High Court under Article 227 is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercisin