O R D E R:

This Civil Revision Petition is filed under Section 115 of C.P.C., against the order dated 02.01.2012 made in I.A.No.699 of 2006 in O.S.No.199 of 2003 on the file of Prl. Senior Civil Judge Court, Vijayawada, Krishna District.

2. For the sake of convenience, the parties herein after will be referred to as 8plaintiffs9 and 8defendants9 as arrayed before the trial Court.

3. The facts leading to the present revision petition are that the 1st petitioner is the 1st defendant in the suit. Second defendant is the daughter-in-law of 1st defendant and defendants 3 to 6 are the children of 2nd defendant and her husband Venkateswara Rao. Plaintiffs 1 and 2 are the daughters of 1st defendant. Plaintiffs filed the suit for partition of the schedule property into four equal shares and for separate possession of 1/4th share, contending that the schedule properties are self acquired properties of their father.

Due to old age the 1st defendant did not remember receipt of any notice in the suit, which was filed seeking preliminary decree. Subsequently she came to know about passing of the preliminary decree. There was no negligence or willful default on her part in not contesting the suit. The 2nd defendant is an illiterate and 3rd defendant is a coolie. She could not file the petition due to non-service of notices in the suit proceedings, thereby prayed to condone the delay of 754 days in filing the application to set aside the exparte preliminary decree dt.26.02.2004.

4. The plaintiffs filed a counter denying the averments of the petition-affidavit and contending that the defendants made appearance in Final Decree proceedings through their counsel. They did not file counter from 24.06.2004 till 31.01.2006, on which date an exparte order was passed in final decree proceedings appointing an Advocate-Commissioner. The defendants did not assign any reason to condone the delay. Even after appointing an Advocate on their behalf, they waited for 22 months.

5. Heard Sri Gangadhar Chamarty, learned counsel for the revision petitioners/defendants 1 to 3 and Sri M.M.M.Srinivasa Rao, learned counsel for respondents 1 and 2/plaintiffs. Respondents 3 to 5/defendants

4 to 6 are said to be not necessary parties in this revision petition.

6. In the light of the above rival contentions, now, the point that would arise for consideration is: -

cause to condone the delay of 754 delay in filing the application to set aside the preliminary decree dt.26.02.2004?=

POINT:-

7. The leaned counsel for the revision petitioners argued that no notice was served on the defendants 1 to 3 calling upon them to appear in the suit proceedings on 22.01.2004 and mere publication in Andhra Jyothi News Paper cannot be treated as service of notice on the defendants 1 to 3. He further contended that appearance of the parties in final decree proceedings is not a bar to file an application to set aside the exparte preliminary decree. The reasons assigned by the defendants is sufficient to condone the delay in order to give an opportunity to the revision petitioners to contest the main suit, which is filed for partition of the schedule properties. In support of his contentions, he relied on a decision of the Hon9ble Apex Court in the case of Bhivchandra Shankar More Vs. Ballu Gangaram More and others reported in (2019) 6 Supreme Court Cases

387.

8. Per contra, the learned counsel for the respondents 1 and 2/plaintiffs 1 and 2 submitted that the defendants 1 to 3 even after receipt of summons and in spite of publication in a reputed daily news paper, failed to make their presence in the suit proceedings and hence the trial Court passed an exparte preliminary decree. He further contended that the defendants 1 to 3 made their appearance in Final Decree proceedings, but they did not file any petition immediately seeking to set aside the exparte decree. The present petition is filed to condone the abnormal delay, which is not explained in terms of Section 5 of the Limitation Act, and in suppo