APHC010565152024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3330]

(Special Original Jurisdiction)

WEDNESDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No. 310/2025 BETWEEN:

Ari Suryanarayana Rao ...PETITIONER AND Mannam Nagendramma ...RESPONDENT Counsel for the Petitioner:

1. J M NAIDU Counsel for the Respondent:

1.--

The Court made the following:

THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No.310 of 2025

ORDER:

The respondent/plaintiff filed suit in O.S.No.141 of 2001 on the file of the learned Principal Junior Civil Judge, Addanki, against the petitioner/defendant for recovery of an amount of Rs.50,000/- basing on the promissory note, dated 19.05.1998. Despite service of summon personally through Court, the defendant was called absent and he was set ex parte on 19.07.2001. Thereby, considering the evidence adduced by the respondent/plaintiff, the said suit was decreed on 30.07.2001 in favour of the respondent/plaintiff against the petitioner/ defendant and ordered to pay an amount of Rs.68,000/- with subsequent interest and costs.

2. I.A.No.156 of 2010 in O.S.No.141 of 2001 was filed under Section 5 of the Limitation Act by the petitioner herein to condone the delay of 2988 days in filing application under Order IX Rule 9 CPC. The said application was dismissed by the learned Judge of the trial Court vide order, dated 07.05.2018. Aggrieved by the same, the petitioner herein filed C.M.A.No.3 of 2018 on the file of the learned Civil Judge (Senior Division), Addanki and the said CMA was dismissed vide order, dated 19.09.2024. Assailing the same, the present civil revision petition is filed. 3. Approximately after expiry of eight years of disposal of the suit, the petitioner/defendant filed I.A.No.156 of 2010 to condone the delay of 2988 days in filing an application under Order IX Rule 9 of CPC to set aside the ex parte order on the ground the suit summons were not served on the petitioner/defendant on 19.07.2001. The learned trial Court Judge has dismissed the I.A. No.156 of 2010 postulating that petitioner/defendant took false plea in the application and the suit summons were served on 19.07.2001 and the petitioner/defendant failed to file medical record that he suffered ill-health at relevant point of time to condone the delay of 2958 days.

4. Assailing the order dated 07.05.2018 in I.A. No.156/2010 in O.S. No.141/2001 on the file of the Junior Civil Judge, Addanki, petitioner/defendant in the suit filed C.M.A. No.3 of 2018 on the file of Civil Judge (Senior Division) Addanki u/s 104 r/w Order 43 Rule 1 C.P.C.

5. The learned lower appellate Court Civil Judge (Senior Division), Addanki, has dismissed the C.M.A. vide order dated 19.09.2024 with the same observations as the Judge of the trial Court.

6. Assailing the order in C.M.A. No.3 of 2018 the present Civil Revision Petition is filed under Article 227 of Constitution of India on several grounds.

The question for consideration is whether an order dismissing the application filed under Section 5 of the Limitation Act for condoning the delay in filing to set aside an order under Rule 9 of Order IX to set aside the dismissal of suit, is an appealable order within the meaning of Section 104 r/w Order 43 rule 1 of the Code of Civil Procedure.

Under Section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against order falling under the various clauses of Order 43 Rule 1 CPC which reads thus :-

"An appeal shall lie from the following orders under the Provisions of Section 104, namely :--

(c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte."

8. In Ratansingh v. Vijaysingh, [(2001) 1 SCC 469] the supreme court h