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Andhra High Court · body

2007 DIGILAW 802 (AP)

S. SEKHAR BABU v. Y. RAMAKRISHNA REDDY

2007-08-23

C.Y.SOMAYAJULU

body2007
( 1 ) FIRST respondent filed the suit against the revision petitioner and the second respondent on the basis of a promissory note. Both revision petitioner and second respondent filed their written statements. Subsequently, the suit was decreed ex parte. So revision petitioner filed a petition under Order 9 Rule 13 C. P. C. with a petition to condone the delay of 96 days. By the order under revision, the trial court, relying on M. Narasimha Reddy v. Begari Samuel, 2002 (6) ALD 473 = 2002 (5) ALT 766 , observed that it is not necessary for the revision petitioner to file two separate applications, one under section 5 of the Limitation Act and the other under Order 9 Rule 13 CPC because both the reliefs can be prayed for in the same petition and allowed the petition under order 9 Rule 13 CPC on some conditions. Alleging that the conditions imposed by the trial Court are onerous, the revision petitioner preferred this revision. ( 2 ) THE order under revision is unsustainable. The assumption on the part of the trial Court that in view of the ratio in m. Narasimha Reddy's case (supra), there is no need to file a separate application under Section 5 of Limitation Act for setting aside an ex parte decree, even in case of delay is wholly incorrect and is erroneous. The trial Court must have made the said observation without going through the said decision in its entirety. Had the Court below taken pains to go through the said decision it would not have failed to notice that the facts in that case are entirely different from the facts in this case. In that case, as the defendant was not served with summons, a paper publication was made and on the basis of the paper publication the defendant in that suit was set ex parte. Later, after coming to know about the ex parte decree passed against him, the defendant in that suit filed an application under Rule 13 of Order 9 CPC to set aside the ex parte decree with a petition to condone delay, inasmuch as that petition was filed beyond 30 days from the date of ex pane decree. Later, after coming to know about the ex parte decree passed against him, the defendant in that suit filed an application under Rule 13 of Order 9 CPC to set aside the ex parte decree with a petition to condone delay, inasmuch as that petition was filed beyond 30 days from the date of ex pane decree. In view of Article 123 of the Limitation Act, which lays down that the period of limitation for setting aside an ex parte decree in case where summons are not served, is 30 days from the date of knowledge, and as the summons in that case were not personally served and as the defendant in that case was set ex parte on a paper publication, the learned judge, in the facts and circumstances of that case, held that filing of a petition under section 5 of Limitation Act was really not necessary. ( 3 ) IN this case, as summons were duly served on the revision petitioner, as per Article 123 of Limitation Act the period of limitation is 30 days from the date of decree. As the petition under Rule 13 of order 9 CPC is filed more than 30 days after the date of decree, revision petitioner has to necessarily file a petition under section 5 of Limitation Act, because without condonation of delay, the petition under Rule 13 of Order 9 C. P. C. filed beyond 30 days from the date of decree cannot be entertained by the Court. ( 4 ) IN fact the trial Court failed to keep in view Rule 55 of the Civil Rules of practice and Circular Orders 1980, which reads: separate application for each distinct prayer. There shall be separate application in respect of each distinct relief prayed for. When several reliefs are combined in one application, the Court may direct the applicant to confine the application only to one of such reliefs unless the reliefs are consequential and to file a separate application in respect of each of the others. ( 5 ) THE prayer in a petition under section 5 of the Limitation Act would be to condone the delay in filing the relevant petition. The prayer in a petition filed under Order 9 Rule 13 CPC would be to set aside the ex parte decree. The reliefs to be granted in these two petitions would be entirely different. ( 5 ) THE prayer in a petition under section 5 of the Limitation Act would be to condone the delay in filing the relevant petition. The prayer in a petition filed under Order 9 Rule 13 CPC would be to set aside the ex parte decree. The reliefs to be granted in these two petitions would be entirely different. As stated above, if the delay is not condoned, the petition under order 9 Rule 13 C. P. C. will have to be dismissed as being barred by time. ( 6 ) THE point for consideration in a petition for condoning the delay and the petition for setting aside the ex parte decree, in some cases, like sickness etc. , may be the same. In some cases, it may be different. So, each case has to be decided on its merit and the facts of that case. ( 7 ) SINCE the trial Court, by misapplying the law and without keeping in view of section 55 of the Civil Rules of Practice allowed the application, this is a fit case to set aside the order under revision and remand the case to the trial Court for fresh disposal of the petition keeping in view the provisions of Section 55 of the civil Rules of Practice, and pass appropriate orders as per law. ( 8 ) THE civil revision petition is disposed of accordingly. No costs.