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2004 DIGILAW 208 (AP)

Padaraju Vidyasagar v. Syndicate Bank, Miryalguda Branch

2004-02-20

L.NARASIMHA REDDY

body2004
( 1 ) THE respondent, Syndicate Bank, filed o. S. No. 4 of 1993 in the Court of Senior Civil judge, Miryalguda for recovery of certain amount, against the petitioner. The suit was decreed ex parte on 30-12-1994. It filed E. P. No. 19 of 1999 for execution of decree and the same was transferred to the Court of Senior civil Judge, Bhongir, and it was numbered as E. P. No. 171 of 2003. ( 2 ) ON receipt of notice in the E. P. , the petitioner filed an application under Order 9 rule 13 of Civil Procedure Code to set aside the ex parte decree dated 30-12-1994 in O. S. No. 4 of 1983. Since there was delay of 1867 days, he filed I. A. No. 65 of 2000 under Section 5 of the Limitation Act to condone the delay. The same was dismissed by the trial Court through its order dated 18-9-2002. Hence, this Civil Revision Petition. ( 3 ) IN the Counter affidavit filed by the respondent, it is stated that the petitioner had borrowed a sum of Rs. 35,000/- on 29-03-1990 as loan and since it was not paid, they filed the suit to recover the amount. It is stated that the address of the petitioner, which was furnished in the documents in the loan transaction was furnished in the plaint and when summons could not be served on the petitioner, substituted service was effected. The facts such as dismissal of E. P. No. 19 of 1999 for default, its restoration and subsequent transfer to Court of Senior Civil judge, Bhongir are also stated. It contends that the petitioner failed to explain the delay in filling application under Order 9 Rule 13, in particular the delay subsequent to receipt of summons in the E. P. ( 4 ) THE learned counsel for the petitioner submits that the petitioner has not obtained any loan from the respondent and that he has not been served with any notice in the suit. He submits that the petitioner received notice for the first time in the E. P. , that too after it was transferred to the Court at Bhongir. The learned counsel contends that the petitioner is resident of Bhongir and that he never had transaction with the respondent functioning at Miryalaguda. He submits that the petitioner received notice for the first time in the E. P. , that too after it was transferred to the Court at Bhongir. The learned counsel contends that the petitioner is resident of Bhongir and that he never had transaction with the respondent functioning at Miryalaguda. He also submits that soon after the petitioner was served with the notice in the E. P. he made an effort to know the details, to secure the papers and on account of non-cooperation of respondent there was delay in filing application, after receiving the notice in E. P. also. ( 5 ) THE learned counsel for the respondent sri Subramany am, on the other hand submits that the respondent has furnished the same address in the suit as was found in the loan documents and on account of non service of notice, substituted service was effected. Reiterating the contents of counter affidavit, he submits that the petitioner did not explain the enormous delay in filing the application to set aside the ex parte decree. According to him the petitioner has come forward with the present application only to defeat the benefits of decree accrued to the respondent. ( 6 ) ON the face of it the delay is enormous, being 1867 days. While Courts insist that each days delay is to be explained, they also emphasize the need to enable the parties to avail an adjudication on merits than through ex parte decrees. A decent balance between these two extremes has to be maintained. Ultimately, what needs to be verified by the court in such matters is as to whether the party which approaches the Court to condone delay has exhibited due diligence and was prevented by any reasonable cause. ( 7 ) IN the matters of condonation of delay in presenting applications to set aside the ex parte decrees, one important fact which needs to be verified is as to whether the petitioners in such application have been served with notices. This results in substantial difference in the approach to the matter. If the party was in total darkness of the proceedings on account of non service of notice, length of delay becomes immaterial. This results in substantial difference in the approach to the matter. If the party was in total darkness of the proceedings on account of non service of notice, length of delay becomes immaterial. On the other hand, if a party was served with notice and did not care to respond to the proceedings, the Court will be reluctant to condone delay even if it is not that enormous. Here again a distinction is to be made between service in the ordinary course and substituted service. By its very nature, substituted service cannot, per say, be treated as an information to the concerned person. Much would depend on the type of circulation of the news paper and avocation or status of the person concerned. ( 8 ) THE petitioner specifically pleaded that he was not served with any notice in the suit. This fact is borne out by the record and is evident from the very fact that substituted service was effected. The suit is filed at miryalaguda whereas the petitioner claims to be residing at Bhongir. The fact that the e. P. was got transferred to Court at Bhongir discloses that the respondent is also aware that the petitioners is resident of Bhongir. The distance between both these places is about 120 kms. The substituted service was effected by publication in a news paper known as Prajaporu. The circulation of this newspaper is very limited and confined mostly to the subscribers. Once it emerges that the petitioner has not been served with notice in the suit and the substituted service is ineffective the extent of delay hardly matters. ( 9 ) ONE aspect which needs to be taken into account is that the petitioner delayed filing of application by almost seven months even after he came to know about the ex parte decree against him. He contend that he went around the office of the first respondent to know the particulars and on account of its non cooperation, the matter was delayed. Howsoever acceptable this contention may be, so much of delay cannot be accepted on this account. Therefore, it is evident that the petitioner is also guilty of negligence to certain extent. For this purpose, the respondent may be awarded costs. Howsoever acceptable this contention may be, so much of delay cannot be accepted on this account. Therefore, it is evident that the petitioner is also guilty of negligence to certain extent. For this purpose, the respondent may be awarded costs. ( 10 ) UNDER these circumstances the Civil revision Petition as well as I. A. No. 65 of 2000 in O. S. No. 4 of 1983 on the file of Senior civil Judge, Miryalaguda is allowed on condition that the petitioner shall pay an amount of Rs. 1,000/- towards costs to respondent in this Court within two weeks from today. An amount of Rs. 20,000/- which the petitioner has deposited as a condition for granting of interim orders, shall continue to be in deposit till the disposal of the suit. ( 11 ) IF the petitioner complies with the condition of deposit of costs, the ex parte decree in O. S. No. 4 of 1983 dated 30-12-1994 shall stand set aside. The petitioner shall be under an obligation to file written statement within one month from the date of said deposit. The Trial Court is directed to expedite the trial and shall dispose of the suit within three months from the date of receipt of the copy of this order.