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2005 DIGILAW 1029 (AP)

Thakur Shekar Singh v. Thakur Chandu Bai (died)

2005-11-02

C.Y.SOMAYAJULU

body2005
( 1 ) THIS revision is directed against the dismissal of the petition to condone the delay of 4600 days in filing a petition to set aside the exparte decree. ( 2 ) THE case, in brief, of the petitioner is that he was not served with the summons in the suit and came to know about the suit only on 20. 5. 2004, when the Amin came to the suit property with a delivery warrant, in execution of the ex parte decree obtained by the respondent, and went to Hyderabad to take the help of the daughter of the respondent and consequently there was a delay of 4600 days in filing the petition to set aside the ex parte decree and so the said delay may be condoned. ( 3 ) THE contention of the respondent is that though petitioner was served with summons both in the suit and in the execution Petition he chose to remain ex parte and since he already took possession of the plaint schedule property on 20. 5. 2004 there are no grounds to condone the delay. ( 4 ) IF really, the petitioner was not served with summons, his filing a petition for condonation of the delay in filing the petition for setting aside the ex parte decree, is not necessary, because limitation to file a petition for setting aside the decree in such case of defendant not being served with summons starts from the date of knowledge but not from the date of decree as per art. 123 of the Limitation Act. ( 5 ) THE order under revision shows that the revision petitioner was served with summons in the suit. In view thereof, regard being had to Rules 16, 18 and 19 of Order V of the Code of civil Procedure read with Section 114 of Evidence Act, a presumption that the suit summon contain the signature of the revision petitioner has to be drawn, and so it is for the revision petitioner to establish that the signature on the suit summons is not that of his, and so he should have taken steps to prove that fact. But he did not adduce any such evidence. But he did not adduce any such evidence. Be that as it may since the averments in the affidavit of the revision petitioner filed in support of the petition in the trial Court, show that he was aware of the respondent obtaining decree against him on 20. 5. 2004, when the Amin came to the plaint schedule property with a delivery warrant. But he filed this petition on 14. 10. 2004 i. e. about five months after his having knowledge of the respondent obtaining the decree against him. ( 6 ) SO, even assuming that revision petitioner was not actually served with summons in the suit, he should atleast explain that delay of four months in filing the petition to set aside the ex parte decree, because it is well known that it is not the length of the delay but it is the reason for the delay that counts, for the court considering a petition under Section 5 of the Limitation Act. ( 7 ) THE only ground mentioned by the revision petitioner is his being an old and helpless man and his going to Nellore for help and return to Hyderabad, which cannot be said to be a good and justifiable reason for his not filing the petition within time. ( 8 ) SINCE, there is no proper explanation for the delay in filing the petition to set aside the ex parte decree, even after his having knowledge of the respondent obtaining the decree against him, by the revision petitioner the order of the Court below dismissing his petition to condone the delay needs no interference by this Court. ( 9 ) HENCE, the revision petition is dismissed. No costs.