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Andhra High Court · body

2023 DIGILAW 620 (AP)

Podili Madhu Babu v. Kandukuri Ramesh Babu

2023-03-21

K.MANMADHA RAO

body2023
ORDER : This Civil Revision Petition is filed by the petitioners against the Order and decree, dated 02.08.2019 passed in I.A.No.406 of 2018 in O.S.No.128 of 2016 on the file of the Court of Senior Civil Judge, Nuzvid, Krishna District. 2. Heard Sri Srinivassa Rao Velviela, learned counsel appearing for the petitioners and Smt. Nimmagadda Revathi, learned counsel appearing for the respondent. 3. The I.A.No.406 of 2018 was filed before the trial Court by the petitioners/defendants against the respondent/plaintiff under Section 5 of Limitation Act to condone the delay of 343 days in filing ex parte decree set aside petition. After careful consideration of the material available on record, the trial Court dismissed the application on the ground that the petitioners have not explained proper reasons to condone the delay. 4. The suit in O.S.No.128 of 2016 was filed by the respondent/plaintiff before the Senior Civil Judge, Nuzvid, to execute proper and regular sale deed in respect of plaint schedule property in terms of agreement of sale dated 17.04.2015 after receipt of balance of sale consideration of Rs.1,53,000/- within time fixed by the Court and also for specific performance of contract, alternatively direct the petitioners/defendants to return the advance amount of Rs.2,00,000/- paid by the respondent/plaintiff together with appropriate damages as the defendants delayed the process of performing their part of contract under the agreement of sale dated 17.04.2015 and for causing mental agony. The said suit was decreed with costs vide judgment dated 2.12.2016 and directed the defendants 1 and 2 to execute a Registered sale deed in respect of plaint schedule property in favour of plaintiff by receiving balance of sale consideration of Rs.1,53,000/- within three months as per terms of register agreement of sale dated 17.04.2015. However, the petitioners/defendants have not complied with the order of the Court below. Now, the petitioners/defendants came with this I.A No.406 of 2018 to condone the delay of 343 days in filing ex parte decree. 5. This Court vide order dated 06.12.2019 has granted interim direction as under: “…Meanwhile, order granting execution of sale deed is stayed for one week and the same was extended from time to time.” The same was extended from time to time. 6. 5. This Court vide order dated 06.12.2019 has granted interim direction as under: “…Meanwhile, order granting execution of sale deed is stayed for one week and the same was extended from time to time.” The same was extended from time to time. 6. During hearing, learned counsel for the petitioners/defendants submits that the Court below ought to have seen that the petitioners filed the present application by explaining proper and real cause for not filing written statement in the suit and subsequent events happened and as such ought to have given reasonable opportunity to the petitioners/defendants to contest the suit by imposing some terms. He further submits that if the impugned order is allowed to be stand, it would be an occasion of failure of justice and the petitioners/defendants will be put much hardship and irreparable loss. 7. On the other hand, learned counsel for the respondent/plaintiff submits that they have filed counter in the I.A. and denied all the allegations made in the petition. She further submits that the after passing decree in favour of respondent, he filed E.P.no.15 of 2017 and notices were also served on petitioners, however the petitioners/defendants intentionally waited till December 2017 and filed the present I.A with false allegations and further submit that they have did not explain any proper cause and reason for the delay of 343 days in filing present petition. Hence the present petition is not maintainable and hence prayed to dismiss the same. 8. This Court observed that the respondent/plaintiff filed the suit against the petitioners/defendants on the foot of agreement of sale dated 17.04.2015 thereafter the respondent obtained decree against the petitioners. While so the petitioners filed this application to condone the delay of 343 days in filing ex parte decree set aside petition under Order 9 Rule 13 CPC stating that the suit agreement was executed only towards security amount borrowed by petitioners from the respondent, soon after receipt of summons from the Court the petitioners approached. The petitioners filed the I.A to condone the delay of 343 days in filing ex parte decree set aside petition. But to prove their case, the petitioners neither choose to adduce any oral evidence nor filed supportive document. Moreover, the petitioners utterly failed to explain day today delay in filing Order 9 Rule 13 CPC application. The petitioners filed the I.A to condone the delay of 343 days in filing ex parte decree set aside petition. But to prove their case, the petitioners neither choose to adduce any oral evidence nor filed supportive document. Moreover, the petitioners utterly failed to explain day today delay in filing Order 9 Rule 13 CPC application. The reason which was mentioned in the affidavit is not bonafide ground to allow the petition. It clearly shows that the respondent obtained decree against the petitioners, thereafter he filed E.P No.15 of 2017 and notices were also served to the petitioners and it also clearly established that the petitioners have misrepresented false allegations to cover up laches on their part. This Court further observed that though in spite of giving several adjournments and also imposed condition that the defendants filed to file their written statement, as such the Court below rightly set them as ex parte and passed the ex parte decree. However, this Court is inclined to dispose of the revision petition. 9. Accordingly, the Civil Revision Petition is disposed of while setting aside the order dated 02.08.2019 passed in I.ANo.406 of 2018 in O.S.No.128 of 2016 on the file of the Senior Civil Judge, Nuzvid, Krishna District, directing the petitioners/defendants to pay costs of Rs.2,000/- (Rupees Two Thousand only) to the credit of O.S.No.128 of 2016. Further, the petitioners/defendants are directed to pay 50% of the balance of sale consideration along with 50% of the suit costs to the respondent/plaintiff, within a period of three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.