HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL MISCELLANEOUS APPEAL No.663 of 2023 ORDER:

This Appeal is filed aggrieved by the order, dated

12.09.2023, passed by the X Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.710 of 2017 in O.S.No.470 of 2015, whereby the application filed under Order IX Rule 13 r/w Section 151 CPC praying to set aside the ex parte judgment dated

31.10.2016 in O.S.No.470 of 2015 was dismissed.

2. The petitioner is defendant No.10 in the subject suit which was filed for partition and separate possession of the suit schedule property. In the said suit, defendant Nos.1 to 5 and 9 remained ex parte and the right of filing written statement by defendant Nos.6 to 8 and 10 to 12 was forfeited. Subsequently, the trial Court held that the plaintiff is entitled for partition of the suit schedule property and for allotment of her 1/3^rd share by metes and bounds and accordingly, allowed the said suit passing preliminary decree, vide its judgment dated 31.12.2016

3. The appellant, who is defendant No.10 in the said suit, filed an application in I.A.No.710 of 2017 seeking to set aside the ex pate judgment. The trial Court by the impugned order dismissed the said application. Aggrieved by the same, the present Appeal is filed.

4. Heard Sri Keerthi Arun Kumar, learned counsel for the appellant. Despite service of notice on the respondents, none choose to enter appearance through counsel and contest the matter.

Perused the entire material available on record.

5. In the grounds of appeal, the appellant contended that written statement was filed along with two applications on 12.06.2017. However, the trial Court failed to consider the same and in fact, erroneously held that the written statement was not filed by the appellant to show his bona fides. However, a perusal of the record shows that the written statement purported to have been filed by the appellant along with two applications is not placed on record.

6. Learned counsel for the appellant contended that the reasons mentioned in both the applications being one and the same, the trial court having allowed the delay application, ought to have allowed the application seeking to set aside the ex parte decree, which is a consequential relief. However, the trial Court failed to consider the same and dismissed the said application. He further contended that by dismissing the application seeking to set aside the ex parte decree, the trial Court deprived the petitioner of the opportunity to contest the suit. Hence, he prayed to allow the Appeal.

7. Learned counsel for the appellant relied upon the decisions of the erstwhile High Court of Andhra Pradesh in Kavali Narayana and Others Vs. Kavali Chennamma, [MANU/AP/0002/2005] and P.Buchanna Vs.

B.Yadagiri, [MANU/AP/0068/2017]

8. In P.Buchanna’s case (2^nd cited supra), the issue involved is whether a single application could have been filed by the petitioner therein for condonation of delay and also to set aside the ex parte decree. The High Court of Andhra Pradesh placed reliance on various judgments of the Division Bench of the erstwhile High Court of Andhra Pradesh wherein it was held that as per Rule 55 of the Rules of 1980, filing of individual applications for separate reliefs is not a universal principle and as regards the applications under Order IX Rule 13 CPC, condonation of delay, whenever such applications are filed beyond the stipulated period of limitation, is interconnected with the main relief viz., setting aside of the ex parte decree, one can exist in the absence of the other.

Ultimately, the erstwhile High Court of Andhra Pradesh allowed the petition filed seeking to condone the delay in filing the application to set aside ex parte decree and also set aside the ex parte decree.

9. In the instant case, the appellant admittedly filed two separate applications viz., one for condonation of delay in filing the application to set aside the ex parte decree and one application to set aside the ex pate judgmen