HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION NO.607 OF 2024

ORDER:

This Civil Revision Petition is filed assailing the order dated

11.10.2023 in I.A.No.530 of 2023 in O.S.No.46 of 2011 passed by the Senior Civil Judge at Nalgonda.

2. Heard Sri D.Y.N.L.N.Charyulu, learned counsel for petitioners and Sri Karunakar Reddy, learned counsel for respondent.

3. The petitioners herein are the defendants and respondent herein is the plaintiff before the trial Court.

4. Brief facts relevant for adjudication of the present Civil Revision Petition are that respondent filed a suit in O.S.No.46 of 2011 for recovery of money. Summons was served on the defendants and they have engaged an advocate Sri T.Kiran Kumar to defend the suit, however, the petitioners were set ex parte for non filing of written statement. Subsequently, the trial Court on due consideration of the material and evidence placed on record, passed ex parte judgment and decree on 21.07.2011.

5. The defendants filed an application under Order IX Rule 13 of CPC to set aside the ex parte judgment and decree along with an application under Section 5 of the Limitation Act to condone the delay of 4366 days under Section vide I.A.No.530 of 2023 in filing application under Order IX Rule 13 of CPC. In the said application, defendants averred that they came to know about passing of ex parte judgment and decree on 21.07.2011 only when they received notices in E.P.No.6 of 2012 filed by the respondent for execution of decree; that they approached their counsel Sri G.Kishore Kumar and he informed the defendants that E.P. as well as E.A. were dismissed by an order dated 10.05.2015 and there are no proceedings pending against the defendants; that in the first week of May, 2023, petitioners came to know about filing of another E.P.No.85 of 2019 when some people came to their house to serve notices. It is further contended that respondent is trying to execute the ex parte decree, which was obtained by playing fraud and immediately, the petitioners made an application for getting certified copies of documents in O.S.No.46 of 2011 and the same were furnished to them on 12.05.2023 and on advice from their counsel, they filed the instant application for condonation of delay of 4336 days in filing application under Order IX Rule 13 of CPC for setting aside the ex parte judgment and decree.

6. Respondent filed counter denying the allegations made in the application and contended that application is not maintainable as petitioners failed to explain sufficient cause for inordinate delay and further there is gross negligence on the part of the petitioners in filing application. It is further contended that suit is of the year 2011 and on receipt of summons, petitioners had engaged a counsel, Sri T.Kiran Kumar, however, the petitioners were set ex parte as they failed to file their written statement and therefore, the petitioners cannot say that they were ignorant of court proceedings and since the delay is not properly explained, the application is liable to be dismissed.

7. The trial Court, considering the contentions of both the parties, dismissed the application vide order dated 11.10.2023 with an observation that the reasons assigned by the petitioners for condonation of delay do not fit within the expression sufficient cause and there was an inordinate delay in prosecuting the lis by wanton and deliberate negligence on the part of the petitioners and therefore, the same cannot be condoned.

8. Learned counsel for petitioners had contended that trial Court failed to consider the fact that the petitioners were not aware of passing of ex parte judgment and decree till they received notices in E.P. filed by the respondent. It is further contended that trial Court should have taken a liberal approach while condoning the delay and ought to have condoned the delay by imposing suitable costs, therefore, the impugned order is erroneous and thus, unsustainable and the revision petition deser