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2008 DIGILAW 1000 (AP)

Godavarthi Krishna Murthy v. Diveela Sesharatnam

2008-11-21

P.S.NARAYANA

body2008
Judgment :- Heard Sri T. Jagadish, learned counsel representing the revision petitioner and Sri N.A. Ramachandra Murthy, learned counsel representing respondent. 2. The civil revision petition is filed under Section 115 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) challenging the order made in C.M.A.No.51 of 2007 on the file of VII Additional District Judge, Ongole, dated 27.8.2007, confirming the order made in I.A.No.348 of 2003 in O.S.No.37 of 2003 dated 01.5.2007 on the file of the Senior Civil Judge, Chirala, whereunder an application praying for condonation of delay in filing an application to set aside the ex parte decree had been dismissed. 3. Sri T. Jagadish, learned counsel representing the revision petitioner filed an application C.R.P.M.P.No.6925 of 2008 praying for permission to convert the present civil revision petition as having been filed as against an order dated 01.5.2007 made in I.A.No.348 of 2007 in O.S.No.37 of 2003 on the file of the learned Senior Civil Judge, at Chirala. The civil revision petition was admitted on 28.9.2007. Sri T. Jagadish, learned counsel representing the revision petitioner had taken this Court through the contents of the affidavit filed in support of the application and would maintain that at the relevant point of time, in the light of the legal position, such application had been filed and as against an order made by the original court, the civil miscellaneous appeal had been preferred and challenging the said order made in C.M.A.No.51 of 2007 the present civil revision petition had been filed and since it is a bona fide mistake, the petitioner may be permitted to convert the present civil revision petition as having been preferred as against the order made in I.A.No.348 of 2007 in O.S.No.37 of 2003 on the file of the Senior Civil Judge, Chirala, instead of as having been filed as against an order made in C.M.A.No.51 of 2007 as aforesaid. 4. However, Sri N.A. Ramachandra Murthy, would maintain that even if the civil revision petition to be preferred at present under Article 227 of the Constitution of India challenging the order made in I.A.No.348 of 2007 in O.S.No.37 of 2003 aforesaid, there being inordinate delay, appropriate application may have to be moved before appropriate court. 5. The counsel on record, no doubt, placed reliance on the under noted decisions. 5. The counsel on record, no doubt, placed reliance on the under noted decisions. (1) K. Ramesh Babu v. Bank of India, Chittoor (2004 (1) An.W.R. 235 (A.P.) (2) S. Sekhar Babu v. Y. Ramakrishna Reddy and another ( 2007 (6) ALD 819 ) The ratio laid down in these decisions need not be gone into, since this Court is of the considered opinion that the civil revision petition filed as against an order made in C.M.A.No.51 of 2007 on the file of VII Additional District Judge, Ongole, itself is not maintainable. 6. The revision petitioner filed an application I.A.No.348 of 2003 in O.S.No.37 of 2003 on the file of the Senior Civil Judge, Chirala praying for condonation of delay in filing an application to set aside the ex parte decree. The said application was dismissed. The said order was challenged by filing C.M.A.No.51 of 2007 on the file of VII Additional District Judge, Ongole, under Order 43 Rule 1 of the Code and the said C.M.A. also was dismissed. Being aggrieved of the same, the present civil revision petition had been preferred. 7. When an application praying for condonation of delay filed under Section 5 of the Limitation Act had been dismissed, the remedy by way of C.M.A. itself is a misconceived remedy. However, having pursued the said remedy the said order is being challenged by way of present civil revision petition under Section 115 of the Code. 8. In the light of the facts and circumstances liberty is given to the petitioner to invoke appropriate remedy with appropriate applications if the petitioner is so advised. Except giving this liberty, nothing else can be done at this stage. 9. Subject to the above observation, the civil revision petition shall stand dismissed as not maintainable. No order as to costs.