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2010 DIGILAW 731 (AP)

Chapala Pedda Thayanna v. Chapala Chinna Thayanna

2010-08-06

C.V.NAGARJUNA REDDY

body2010
ORDER This Civil Revision Petition arises out of order dated 15.02.2010 in Civil Miscellaneous Appeal No.19 of 2009 on the file of the learned II-Additional District Judge, Kurnool at Adoni (for short" the lower appellate Court"), whereby he has confirmed order dated 30.03.2009 passed by the learned Principal Junior Civil Judge, Adoni (for short "the trial Court') in I.A.No.358 of 2007 in O.S.No.192 of 2007. 2. The petitioner is defendant No.1 in the suit. Respondent No.1 filed the suit against the petitioner and six others for partition and separate possession of their shares. The petitioner remained ex parte in the suit and consequently an ex parte preliminary decree was passed against him on 18.09.2007. The petitioner filed I.A.No.358 of 2007 under Order IX Rule 13 CPC to set aside the ex parte decree. Respondent No.1 has, inter alia, taken objection that while the ex parte decree was passed on 18.09.2007, the application was filed on 20.12.2007 i.e., 3 months 2 days after the passing of the ex parte decree as against the period of limitation of 30 days without filing an application for condonation of delay. The petitioner has contested the said plea. The trial Court upheld the objections of respondent No.1, by placing reliance on Article 123 of the Limitation Act, which prescribed limitation of 30 days for setting aside the ex parte decree. The plea of the petitioner that the limitation shall be reckoned from the date of the knowledge of the decree was rejected by the trial Court relying on the said Article, which envisages that the period of limitation will start running from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. It is not the pleaded case of the petitioner that summons were not served on him. Therefore, his plea was wholly misplaced and was rightly rejected by the 2 trial Court. The petitioner was unsuccessful in convincing the lower appellate Court to reverse the order of the trial Court and as a result, the Civil Miscellaneous Appeal also ended in its dismissal by order dated 15.02.2010. 3. At the hearing, Sri P.Nagendra Reddy, learned counsel for the petitioner, made strenuous efforts to convince this Court that the petitioner may be given a fresh opportunity, to file an application for condonation of delay. 4. 3. At the hearing, Sri P.Nagendra Reddy, learned counsel for the petitioner, made strenuous efforts to convince this Court that the petitioner may be given a fresh opportunity, to file an application for condonation of delay. 4. I am afraid, I cannot accept this request at this stage. In the first place, the very plea of the petitioner that the limitation starts from the date of the knowledge is specious and patently contrary to the specific provision under the Limitation Act. Even assuming that he raised this plea bona fide, at least when a stiff resistance was put up by respondent No.1, he should have realised and made a request to the trial Court to permit him to file an' application for condonation of delay. This having not been done, he did not do the same even before the lower appellate Court. This conduct of the petitioner clearly shows his lack of bona fides, Therefore, I am not inclined to permit the petitioner to file an application for condonation of delay. 5. For the above mentioned reasons, the Civil Revision Petition is dismissed. 6. As a sequel to dismissal of main petition, CRPMP No.2094 of 2010 filed by the petitioner for interim relief is disposed of as infructuous.