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2020 DIGILAW 744 (AP)

Gutti Kumari Lakshmi v. Boddu Sanjeeva Rao

2020-11-25

LALITHA KANNEGANTI

body2020
ORDER : Lalitha Kanneganti, J. 1. Challenging the decree and judgment dated 23.8.2017 in OS No. 88 of 2012 on the file of Senior Civil Judge, Chirala, Prakasam District, the appellants-defendants have preferred the appeal. 2. For the sake of convenience, the parties in this appeal are referred to as they are arrayed in OS No. 88 of 2012. 3. The case of the appellants is that the plaintiff filed the suit in OS No. 88 of 2012 on the basis of 59 promissory notes allegedly executed by one Gutti Nageswara Rao, who is the husband of the 1st defendant and father of defendants 2 to 4. The said Gutti Nageswara Rao failed to repay the amount due to the plaintiff and he died intestate on 10.11.2011 leaving the defendants 1 to 4 as his legal heirs. Thereafter when the plaintiff informed the defendants 1 to 4 about the amount due to him from Gutti Nageswara Rao and demanded them to repay the same, they promised to discharge the debt, but they did not keep up their promise and postponed the same on one pretext or other. As such the plaintiff is constrained to file the suit for recovery of amount on the foot of promissory notes. 4. The defendants filed their written statement denying the execution of the promissory notes and the signatures on the promissory notes do not belong to their father and the promissory notes are rank forgery. It is stated that their father has no necessity to borrow the amount and all the 59 promissory notes were created and pressed into service. It is stated that the defendants' father, during his lifetime opened a savings bank account in Andhra Bank, Vetapalem bearing No. 14930 and also in Pmakini Grameena Bank, Chirala, as such specimen signatures of then father are available for comparison. 5. The Court below decreed the suit holding that the defendants failed to prove that the Exhibits A1 to A59 are created by forging the signatures of Gutti Nageswara Rao and on the other hand, the evidence of PW 1 and the chief-examination affidavit of plaintiff witnesses show that the deceased Giitti Nageswara Rao executed the suit promissory notes, when he borrowed the money from the plaintiff. 6. Aggrieved by the same, the present appeal is filed with a delay of 717 days. 7. 6. Aggrieved by the same, the present appeal is filed with a delay of 717 days. 7. Learned Counsel for the defendants would submit that the decree and judgment passed by the Trial Court is an ex parte decree as it is specifically noted in Paragraph 5 of the judgment that "the defendants called absent and defendants side arguments was treated as nil" and the defendants were not given any opportunity to put forth their case He argued that the defendants were not aware of the decree and judgment dated 23.8.2017 passed by the Trial Court and they came to know about it only when they received attachment notice on 14.9.2019 in EP No. 35 of 2019 and immediately, they questioned their advocate, but he gave evasive answers and gave away the suit record. 8. Learned Counsel for the defendants submits that having lost faith in their Counsel, the defendants approached Sri D Joshi Vijay Kumar, another senior advocate at Chirala and requested him to enquire as to what had happened and after enquiry, they came to know that an ex parte decree was passed on 23.8.2017 and on their request, their Counsel obtained certified copies of decree and judgment and they came to know that the said decree was put into execution and their residential house was attached Immediately they got filed the present appeal Learned Counsel submits that the delay of 717 days is neither willful not wanton In support of his submission, learned Counsel relied on the judgment of this Court in Thumu Govardhana Rao and others v Bohnem Ramachandraiah, AIR 1961 AP 116 and the Hon'ble Apex Court judgment in N Balakrishnan v in Krishnamurthy, AIR 1998 SC 3222 : (1998) 7 SCC 133. 9. With regard to scope of Order XVII Rule 2 of CPC and whether the judgment impugned can be termed as an ex parte judgment, learned Counsel for the defendants leeched on the judgment of the Apex Court in B. Janahramaiah Chetty v. A.K. Parthasarthi, AIR 2003 SC 3527 : 2003 (3) ALD 79 (SC) and judgment of this Court in Ekkaladevi Devaiah v Bojja Laxmi and others, 2017 (5) ALD 194 . 10. 10. Sri Rama Sharana Sarma Palaparthi, learned Counsel for the plaintiff submits that the defendants failed to give any cogent reason for the inordinate delay of 717 days He submits that the allegation against the advocate that he has not informed about passing of decree in the suit is not believable and the defendants used to come to the Court physically whenever the matter has been called and they used to verify the A-Diary for all the proceedings He submits that the defendants came to know about the ex parte decree only when the attachment was ordered is false, because the defendants were served with notices in the E P as well He further submits that unless in an original cause of action, the limitation for filing the appeal starts from the date of pronouncement of the judgment excluding the time taken for obtaining the certified copy of the judgment, as such there is a delay of 3 years, which is not properly explained and the said delay cannot be condoned. 11. He further submits that the suit is filed in the year 2012 and the plaintiff is aged about 72 years and with this act of delaying tactics, the plaintiff is not in a position to enjoy the fruits of decree. With regard to other aspect of Order XVII Rule 2 of C.P.C., he submits that it is a contested suit and it cannot be termed as an ex parte decree. In support of his contention, he relied on the judgment of the Madras High Court in Lakshmi v. Gunasekaran, AS (SR) No. 3107 of 2020 dated 20.1.2020, wherein it was held that "the concepts such as "liberal approach", "justice oriented approach", "substantial justice" cannot be employed to jettison the substantial law of limitation. The law of limitation is substantial and therefore the principles laid down is to be scrupulously followed while condoning the delay under the law of limitation". 12. Accordingly, the first appeal is allowed and the decree and judgment dated 23.8.2017 in OS No. 88 of 2012 on the file of Senior Civil Judge, Chirala, Prakasam District is set aside. The suit is remanded back to the Court of Senior Civil Judge, Chirala, Prakasam District for fresh disposal in accordance with law. 12. Accordingly, the first appeal is allowed and the decree and judgment dated 23.8.2017 in OS No. 88 of 2012 on the file of Senior Civil Judge, Chirala, Prakasam District is set aside. The suit is remanded back to the Court of Senior Civil Judge, Chirala, Prakasam District for fresh disposal in accordance with law. Since the suit is of the year 2012, the learned Senior Civil Judge, Chirala, Prakasam District is directed to dispose of the same as expeditiously as possible, preferably within six months from the date of receipt of a copy of this judgment. 13. As a sequel, all the pending miscellaneous applications are closed.