ORDER:

The second defendant before the learned trial Court filed this civil revision petition under Section 115 of C.P.C. impugning the order dated 15.11.2018 passed by the learned Senior Civil Judge, Gudur, SPSR Nellore District in I.A.No.463 of 2013 in O.S.No.5 of

2009.

2. The 1 st respondent in this petition is plaintiff and the 2 nd respondent in this petition is 1 st defendant in the suit.

3.

O.S.No.5 of 2009 was a suit for partition and separate possession and there was one plaintiff and two defendants. The 1 st defendant is mother of the 2 nd defendant. A preliminary decree was passed on 11.04.2012 granting 4/9 th share to the 1 st respondent/plaintiff therein. While final decree proceedings were initiated, the 2 nd defendant had filed I.A.No.463 of 2013 under Section 5 of the Limitation Act, 1963 (for short, ‘the Act’) seeking to condone the delay of 339 days in filing a petition under Order IX Rule 13 of C.P.C. to set aside the preliminary decree, which was passed ex-parte. After due contest, the learned trial Court dismissed the said petition and that resulted in this revision moved by the 2 nd defendant in the suit.

4. Before the trial Court, this revision petitioner filed a sworn affidavit in support of I.A.No.463 of 2013 wherein he stated that he received suit summons and along with his mother he made appearance in the Court and he also filed a written statement. Thereafter, his mother told him that she would pursue the suit and talk to the plaintiff and see that the suit be withdrawn. The petitioner believed his mother and kept quite and did not pursue the suit and all throughout was under the impression that the suit would be withdrawn by the plaintiff. He further stated that he received notices in the final decree proceedings and then enquired with his mother, who told him that the plaintiff did not agree for withdrawal of the suit. Thus, the petitioner concluded that his mother colluded with the plaintiff. It is with these facts he prayed the trial Court to set aside the ex-parte decree that was passed on

11.04.2012.

5. The 1 st respondent/plaintiff filed a counter and resisted the petition. Learned trial Court having considered the petition and the counter and the arguments advanced on both sides, stated that non-pursuing the suit under the belief that the mother of the petitioner would pursue the matter was not a sufficient cause to condone the delay of 339 days and it observed that the petitioner has been very negligent in defending his case. It is with these reasons it dismissed the said petition.

6. In the present revision, the petitioner states that his mother colluded with the plaintiff and this fact ought to have been believed by the trial Court. For these reasons, he seeks to upset the impugned order.

7. Learned counsel for the respondents submits that Section 5 of the Act requires explanation of each day delay and on the available facts the learned trial Court reached to appropriate conclusions and therefore, the impugned order does not require any interference.

8. In the context of the facts available on record, the question that falls for consideration in this revision is:

Whether the impugned order suffers from illegality or material irregularity as the lower Court failed to consider the cause assigned as sufficient to condone delay?

9. A copy of the preliminary decree in O.S.No.5 of 2009 is available on record and the cause title of it would show that the mother and son, who are defendant Nos.1 and 2 in the suit, are shown to be residents of same village. By the own showing of the revision petitioner, he and his mother together made appearance before the trial Court and they also filed a written statement resisting the prayer of the plaintiff in seeking for partition of the suit schedule properties. On his own showing, this revision petitioner did not pursue