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2023 DIGILAW 789 (TS)

Katta Rama Krishna Reddy v. Katta

2023-12-21

SAMBASIVA RAO NAIDU

body2023
ORDER : (Sambasiva Rao Naidu, J.) 1. Being aggrieved by the Order dated 29.11.2017 in I.A.No.859 of 2015 in O.S.No.1394 of 2004 on the file of I Additional Senior Civil Judge, Ranga Reddy District, whereunder petition filed by the petitioner herein and 1st defendant in the above referred suit under Section 5 of Limitation Act to condone the delay of (3806) days in filing petition required under Order IX Rule 13 CPC was dismissed, the petitioner preferred the present Civil Revision Petition on the following grounds: The impugned Order in I.A.No.859 of 2015, dated 29.1102017 is illegal, irregular and required to be set aside. The Court below committed grave error in dismissing his application without verifying that there was no notice on the petitioner in the main suit, thereby the question of his filing vakalat may not arise. The petitioner never approached any Advocate, but fraud has been played by the respondent/plaintiff, as such the petitioner deserves an opportunity to contest the main suit. The petitioner further claimed that the Court below ought to have seen that the main suit was filed on 07.10.2004 whereas the petitioner sold the property on 19.01.2004 under registered document bearing No.777 of 2004. In view of the suit proceedings, the Vendee of the petitioner, is pressuring him to settle the issue. The petitioner has claimed that he came to know about the suit proceedings only after receiving notices in I.A.No.999 of 2015 and he has filed the above referred Interlocutory Application immediately and sought for setting aside the ex parte decree. The petitioner having denied the vakalat in the suit, further contended that there was no proper service of summons and fraud has been played upon him. Therefore, the petition ought not to to have dismissed by the trial Court as such sought for setting aside the impugned order. 2. As could be seen from the Order impugned in the revision and in view of the affidavit filed in support of the above referred petition, it shows that respondent/plaintiff filed suit vide O.S.No.1394 of 2004 against the present petitioner and the said suit was decreed ex parte on 21.03.2005. The petitioner has claimed that a collusive decree has been obtained by the 1st respondent/plaintiff and the 2nd respondent/defendant No.2. In fact, he has sold the subject property under a registered sale deed, dated 19.01.2004. The petitioner has claimed that a collusive decree has been obtained by the 1st respondent/plaintiff and the 2nd respondent/defendant No.2. In fact, he has sold the subject property under a registered sale deed, dated 19.01.2004. The said sale was within the knowledge of respondent/plaintiff and respondent/2nd defendant. The record further shows that the respondent No.1/plaintiff has filed the main suit for partition and separate possession. The petitioner herein was shown as 1st defendant in the said suit. According to the averments made by the respondent No.1/plaintiff it is alleged that the petitioner herein, respondent/plaintiff and respondent/2nd defendant are the children of Katta Narayana Reddy. The 1st respondent having claimed that her father died intestate in 1988, sought for partition of the suit schedule property. However, since the petitioner who is shown as 1st defendant, did not contest the suit, the same was decreed in favour of the respondent/plaintiff. However, the petitioner has claimed that there was no proper service of summons, thereby the question of his remaining ex parte before the Court below may not arise. 3. The respondent/plaintiff opposed the petition. As per the affidavit filed by the petitioner herein, he came to know about the above referred suit only in February, 2015 and about the preliminary decree passed in favour of the respondent/plaintiff when he received the notice in the application filed by the 2nd respondent for appointment of Advocate Commissioner to affect the final decree. The petitioner has claimed that soon after receiving the said notice he has approached an Advocate at Hyderabad and he has given all the details, as such he has handed over the record to an Advocate. But the said Advocate lost the bundle and filed counter in I.A.No.999 of 2014, did not file counter in another interlocutory application and failed to file the application to set aside ex parte order. 4. Therefore, according to his own affidavit the petitioner was not diligent to prosecute the petition. Even according to his own affidavit after receiving notice in the final decree petition, said to have delivered the record to an Advocate with an instruction to file appropriate application for setting aside the ex parte decree. The petitioner did not explain the dates on which he received the notice and as to when he approached the counsel. Even according to his own affidavit after receiving notice in the final decree petition, said to have delivered the record to an Advocate with an instruction to file appropriate application for setting aside the ex parte decree. The petitioner did not explain the dates on which he received the notice and as to when he approached the counsel. Absolutely there is no reason for his failure to file petition under Order IX Rule 13 CPC and the delay sought to be condoned is more than 10 years. 5. The petitioner cannot throw the entire burden on the counsel and simply escape by saying that the delay was occasioned due to failure of the Advocate. When once he came to know that a partition suit was decreed in favour of his sister and a petition for final decree was pending before the appropriate Court, he must be vigilant to see that appropriate petitions are filed within time. The petitioner even though was under the obligation to explain each day's delay, failed to explain by saying that he handed over the record to Advocate and in view of the failure of the Advocate he prayed for condoning the delay. Therefore, the Court below rightly dismissed the application and there is nothing to interfere with the said order while exercising revisional jurisdiction. Therefore, the revision is liable to be dismissed. 6. In the result, the revision is dismissed. No costs. As a sequel, pending Miscellaneous Applications, if any, shall stand closed.