COMMON JUDGMENT: Sole defendant in Suit preferred present Civil Revision Petition and Civil Miscellaneous Appeal aggrieved by two separate orders of even dated 23.01.2024, passed in I.A.No.38 of 2019 and I.A.No.165 of 2020 in O.S.No.41 of 2014 on the file of the Court of VII Additional District Judge, Gudur, respectively, rejecting the prayer for condoning delay of 1165 days in filing the petition for setting aside ex parte decree, and consequently, the application filed under Order IX Rule 13 CPC for setting aside ex parte decree, came to be dismissed as infructuous. 2. For the sake of convenience, parties herein are referred to as they were arrayed in the Suit before the trial Court. 3. Brief facts of the case are as follows: O.S.No.195 of 2013 on the file of the Court of Principal District Judge, Nellore, was filed by the plaintiff for recovery of an amount of Rs.19,26,400/- with interest against the defendant. The said amount was claimed on account of breach of the arrangement had between plaintiff and defendant for buyback of Emu eggs. The trial Court initially ordered notice and issued summons on 25.10.2013. On 22.11.2013 when the matter was called, counsel entered appearance and filed vakalat for defendant and sought time for filing written statement. The matter was adjourned to 21.02.2014. As neither written statement was filed nor there was any representation for defendant, the defendant was set ex parte and the matter was posted to 28.03.2014 for plaintiff’s evidence. However, the Suit was advanced and taken up on 28.02.2014 and was transferred to the Court of the VII Additional District Judge, Gudur, on point of jurisdiction. Accordingly, the Suit was received and renumbered as O.S.No.41 of 2014 and entertained by the VII Additional District Judge, Gudur, on 26.03.2014, for proceeding further with the matter. It appears the matter was, thereafter, proceeded with and ultimately, the Suit came to be decreed on 12.08.2015. Later, plaintiff being decree holder filed execution proceedings in E.P. No.3 of 2016 on the file of the same Court. After receipt of summons in the said E.P., it is stated that the defendant came to know about the ex parte decree and had immediately engaged new counsel and entered appearance in the said E.P. for contesting the matter. Later, plaintiff being decree holder filed execution proceedings in E.P. No.3 of 2016 on the file of the same Court. After receipt of summons in the said E.P., it is stated that the defendant came to know about the ex parte decree and had immediately engaged new counsel and entered appearance in the said E.P. for contesting the matter. The defendant, thereafter, filed I.A.No.38 of 2019 under Section 151 CPC r/w. Section 5 of the Limitation Act seeking to condone delay of 1165 days in filing petition for setting aside ex parte decree. In the said petition, though the plaintiff asserted that the Suit was transferred from the Court of the Principal District Judge, Nellore, to the Court of the VII Additional District Judge, Gudur, on 28.03.2014, notice was ordered to both parties, no such notice was ever served or received by the defendant, therefore, passing of ex parte decree is vitiated, by taking advantage of such ex parte decree, execution proceedings were sought to be pressed into. Only after receipt of summons in the said execution proceedings on 27.10.2018, having come to know about ex parte decree, steps were initiated to file application under Order IX Rule 13 CPC seeking for setting aside ex parte decree along with application to condone the delay of 1165 days in filing such application. The defendant also filed written statement along with the aforesaid application to show bona fides. - - 4. Both these applications were opposed by the plaintiff by filing counters. In the counter, it is pleaded that the defendant had knowledge of initiation of Suit as it was represented by Counsel by filing Vakalat before the Court of the Principal District Judge, Nellore, for having not filed written statement, it was set ex parte and only, thereafter, upon transfer, the Suit came to be decreed on 12.08.2015. - Further, in execution proceedings after the attachment was made absolute on 19.02.2016 and when it was coming for counter, on 26.06.2018, Sri S. Gangi Reddy, Advocate, filed vakalat on behalf of the defendant. Therefore, the matter was adjourned to 31.10.2018 for filing counter, however, as no counter was filed even in the E.P., defendant was set ex parte on 31.10.2018 and the matter got adjourned to 19.11.2018 for settlement of terms. Therefore, the matter was adjourned to 31.10.2018 for filing counter, however, as no counter was filed even in the E.P., defendant was set ex parte on 31.10.2018 and the matter got adjourned to 19.11.2018 for settlement of terms. At that point of time, the defendant then filed E.A.No.71 of 2018 for setting aside the ex parte order, dated 31.10.2018, in the E.P., which came to be allowed on condition of depositing decretal amount on or before 20.12.2018. Assailing the same, the defendant preferred C.R.P.No.7689 of 2018 before this Court wherein on condition of depositing Rs.5.00 Lakhs, further proceedings in E.P. came to be stayed. It is also stated that all through the defendant was watching the proceedings without effectively participating, therefore, lacked bona fides in contesting the matter, with intention to drag on the proceedings, delay tactics were adopted and hence, opposed both the applications. 5. Upon consideration of the pleadings and contentions raised by both parties, the trial Court ultimately dismissed I.A.No.38 of 2019 refusing to condone the delay. Resultantly, I.A.No.165 of 2020 came to be dismissed as infructuous. Assailing these two orders, present Civil Revision Petition and Civil Miscellaneous Appeal are filed. - 6. Heard Smt.Sangeetha Kumar, learned counsel, representing Sri Doddala Prudhvi Teja, learned counsel for the appellant/defendant and Sri C.V.R. Rudra Prasad, learned counsel, representing Sri J. Krishna Praneeth, learned counsel for the respondent/plaintiff. 7. Learned counsel for the defendant mainly contended that when the Suit was transferred from the Court of the Principal District Judge, Nellore, to the Court of the VII Additional District Judge, Gudur, and having issued notice to both plaintiff and defendant on 28.03.2014, unless the notices were effectively served, the trial Court could not have proceeded with the matter and decreed the Suit, which is in clear violation of procedure contemplated under C.P.C., besides being in violation of principles of natural justice. Further, it is only on 27.10.2018 when summons were served in E.P., the defendant had knowledge of passing ex parte decree, since the applications under Order IX Rule 13 CPC and Section 5 of the Limitation Act came to be filed immediately on 16.11.2018, along with written statement, the trial Court ought to have considered the date of knowledge and the period within which these applications came to be preferred for the purpose of condoning the delay rather than computing from the date of ex parte decree. It is further contended that already the defendant has deposited Rs.5.00 Lakhs in pursuance to the directions of this Court in C.R.P.No.7689 of 2018, as the defendant has fair chances of success on merits in case the trial is held, therefore, is willing to accept any further conditions. In support of aforesaid submissions, reliance has been placed on the judgment of the Madras High Court in Dayanandhini v. K. Mala , [2019 SCC OnLine Mad 19869] to buttress the point that opportunity be given for parties to contest the matters on merits rather than dismissing the cases on technicalities, and that when the Suit has been transferred from one Court to another Court, though there is no specific provision under CPC or Civil Rules of Practice to issue notice to parties, the parties to Suit are required to be put on notice of such transfer for effectively conducting the proceedings. - 8. Per contra, learned counsel appearing for the respondent/plaintiff, refuting the contentions raised by the learned counsel for the defendant, contended that the defendant lacks bona fides and was not diligent in pursuing both the Suit as well as E.P., inasmuch as in both proceedings, it was set ex parte and only after publication of sale notice issued in E.P. proceedings, the application was filed for setting aside the ex parte orders in E.P. and as well as in Suit, which is clearly delayed tactics. He further contended that the defendant had knowledge of the Suit as it was represented by counsel before the Court of the Principal District Judge, Nellore, where on account of non-filing of written statement, it was ex parte. Likewise, even before the execution proceedings, it was represented by counsel and for non-filing of counter, yet again, was set ex parte therein on 31.10.2018, which itself clearly indicating that defendant lacked clear bona fides in pursuing the matter, therefore, a person having knowledge and misleading the Court of not having knowledge of proceedings, cannot be extended the discretion of condoning inordinate delay of 1165 days in filing the petition. He further contended that as defendant was set ex parte even before the Suit got transferred, question of issuing notice once again calling upon it to file written statement by the successor Court does not arise. He further contended that as defendant was set ex parte even before the Suit got transferred, question of issuing notice once again calling upon it to file written statement by the successor Court does not arise. In support of his submissions, reliance has been placed on the judgment of the Hon’ble Supreme Court in John Impex Pvt. Ltd. v. Athul Kapur , [ (2009) 15 SCC 285 ] to buttress that even if the proceedings are transferred, it is for the parties to find out the likely dates of appearance as they were already sufficiently served before transfer. - - 9. Perused the record and considered the rival submissions of both the learned counsel. 10. Plaintiff has instituted Suit for recovery of money before the Court of the Principal District Judge, Nellore, which was numbered as O.S.No.195 of 2013. The said Court issued notice to the defendant on 25.10.2013 through registered post. The Suit was posted to 22.11.2013, on which date, the service of summons through Court were reported not yet returned, however, based on notices sent through registered post, one Mr.Shaik Shafi Ahmed, Advocate, filed vakalat for defendant and sought for time for filing written statement. Accordingly, Suit was adjourned to 21.02.2014. When the matter was called on the said day, neither written statement was filed nor was there any representation for defendant. Therefore, it was set ex parte and Suit was adjourned to 28.03.2014 for plaintiff’s evidence. Thereafter, Suit was advanced on account of administrative reasons and the same got transferred to the Court of the VII Additional District Judge, Gudur, on 28.02.2014. On 26.03.2014, the suit was received by the Court of the VII Additional District Judge, Gudur, and got renumbered as O.S.N:o.41 of 2014 and adjourned to 28.03.2014. On the said day, notice was ordered to the parties and adjourned to 28.04.2014. Again, it got adjourned to 22.09.2014 for plaintiff’s evidence and ultimately, after few hearings, on 12.08.2015 the Suit was decreed for Rs.19,26,400/- along with interest at the rate of 6% p.a. from the date of Suit till realisation. Later, D.Hr. filed E.P.No.3 of 2016 for execution, in which, initially ordered interim attachment of lands of defendant/J.Dr. and later was made absolute on 09.03.2016. Notices were ordered in E.P., as per the assertion of defendant, it received notice on 27.10.2018, whereas, as per assertion of plaintiff/D.Hr. Later, D.Hr. filed E.P.No.3 of 2016 for execution, in which, initially ordered interim attachment of lands of defendant/J.Dr. and later was made absolute on 09.03.2016. Notices were ordered in E.P., as per the assertion of defendant, it received notice on 27.10.2018, whereas, as per assertion of plaintiff/D.Hr. as notice was not served, plaintiff had taken out notice by way of publication in newspaper and only after sale notice was issued by way of publication, J.Dr. entered appearance in E.P. through counsel, however, even there, as failed to file counter, was set ex parte on 31.07.2018. Therefore, there are two versions on this aspect. However, fact remains that defendant/J.Dr. filed E.A.No.71 of 2018 for setting aside the ex parte order in E.P., and so also in I.A.No.38 of 2019 in the Suit for setting aside the ex parte decree by condoning the delay. The E.P. Court allowed E.A.No.71 of 2018 on condition of depositing half of decretal amount, however, as the matter was carried before this Court in C.R.P.No.7689 of 2018, on condition of paying Rs.5.00 Lakhs, proceedings in E.P. came to be stayed. It is also borne out of record that defendant deposited the said amount and later E.P. was closed on 22.02.2019 with liberty for statistical purpose, eventually, even C.R.P. was also dismissed for non-prosecution on 15.03.2024 and that the D.Hr. initiated fresh E.P. No.27 of 2024, which is pending. 11. Defendant claims to have acquired knowledge of passing ex parte decree only after it received notice in E.P. on 27.10.2018, which is disputed and denied by the plaintiff. 12. The question, therefore, that needs to be considered is as to whether defendant had knowledge of institution of Suit at first instance and whether it is entitled to be issued notice upon the transfer of Suit from one Court to another Court. 13. It is not in dispute that upon institution of Suit by plaintiff, the notice was served on the defendant and it entered appearance through counsel. It is also not in dispute that the defendant did not file written statement at the initial point of time. Eventually, due to non-filing of written statement and even the appearance by counsel, it was set ex parte on 21.02.2014. It is also not in dispute that the defendant did not file written statement at the initial point of time. Eventually, due to non-filing of written statement and even the appearance by counsel, it was set ex parte on 21.02.2014. Learned counsel for the defendant contends that the counsel, who was engaged to appear in the matter, did not take effective steps for filing written statement nor informed the defendant of need to file one within timelines specified under CPC, nor has later updated further proceedings in Suit, so was unaware of Suit proceedings. This Court is afraid to accept such contention, as it is for the defendant to pursue the proceedings with the counsel engaged, but not vice versa. If the defendant had been vigilant and not negligent in pursuing the proceedings, it definitely would not have met with the present consequences. It is anybody’s imagination that once recovery proceedings are instituted against a person, without taking any steps to defend the same, and being in contact with the counsel to find out the developments, cannot wait for indefinite period for the counsel, in turn, to contact. The transaction in the present case appears to be commercial in nature, therefore, when the defendant is in business, it cannot plead ignorance of law. Therefore, the argument of learned counsel for defendant that it did not have knowledge of decree pales into insignificance inasmuch as it was well represented by the counsel at the earliest point of time. No doubt, after defendant being set ex parte, the Suit got transferred from the Court of the Principal District Judge, Nellore, to the Court of the VII Additional District Judge, Gudur, and the latter Court issued notices to both parties. - - 14. Learned counsel for the defendant by placing reliance on Dayanandini ’s case, contended that it is entitled for the second notice upon transfer. Though the latter Court appears to have issued notices to both parties, in considered opinion of this Court, it was unnecessary, in particular, to the defendant. This is further the reason that the defendant was already set ex parte even before transfer. Therefore, question of issuing notice again does not arise. The case that is one cited deals with proceedings instituted initially under original jurisdiction before Madras High Court and thereafter, on pecuniary jurisdiction, the same got transferred to City Civil Court. This is further the reason that the defendant was already set ex parte even before transfer. Therefore, question of issuing notice again does not arise. The case that is one cited deals with proceedings instituted initially under original jurisdiction before Madras High Court and thereafter, on pecuniary jurisdiction, the same got transferred to City Civil Court. After transfer to City Civil Court, even without any notice to both parties, the matter was proceeded with and first, the defendant was set ex parte and later on even Suit itself was dismissed for non- prosecution. Later, at the instance of plaintiff, Suit came to be restored to file and ex parte decree was passed. The defendant, having acquired knowledge of ex parte decree, moved application to set aside the same by condoning the delay, which was dismissed. When the matter ended up before High Court, having regard to the fact that the Suit was transferred from one Court to another Court and without notice to either of parties, the latter Court proceeded with the matter, it was found fault with the said procedure adopted, despite there being no specific provision under CPC or Civil Rules of Practice for issuance of any notice by latter Court, it was felt advisable to issue notice to either parties before adjudicating the matter on merits. Peculiarly here such a scenario does not arise inasmuch as even before transfer, the defendant was set ex parte and later, upon transfer of the Suit, the plaintiff did have knowledge of such transfer, having followed up with the Section, took steps to enter appearance and pursued the matter to logical end. In this context, the judgment of the Hon’ble Apex Court in John Impex Pvt. Ltd. ’s case, relied on by the learned counsel for the plaintiff would come to aid. Para.10 of the said judgment reads as follows: - “ 10. The basic fact of the matter is not in dispute. The appellants were tenants. A suit for eviction was filed by the respondent before the Original Side of the Delhi High Court on 27-3-1993 which was marked as Suit No. 767 of 1993. The appellants in their written statement took the plea of their right to continue in the suit premises as statutory tenants. The parties adduced evidences in support of their respective case. The matter was posted for final argument. The appellants in their written statement took the plea of their right to continue in the suit premises as statutory tenants. The parties adduced evidences in support of their respective case. The matter was posted for final argument. It is, at this stage, the suit was transferred. The fact that the suit had been transferred from the Original Side of the Delhi High Court to the Court of the Additional District Judge was known to all the litigants. The appellants, indisputably, had not made any endeavour to find out the date on which the suit was likely to be taken up for hearing.” 15. In opinion of this Court, as in the present case even before transfer, the defendant was set ex parte, requirement of issuing any fresh notice does not arise. Even otherwise, no provision either under CPC nor Civil Rules of Practice is brought to notice of this Court by defendant contemplating issuance of notice after being set ex parte. The record and pleadings further indicate that the defendant was represented by counsel in the Suit before being set ex parte and likewise by another counsel in E.P. before being set ex parte even therein. Though, it is contended by learned counsel for the defendant that the defendant had come to knowledge of passing ex parte decree only on 27.10.2018, this Court is not impressed with the same, as was its duty to ascertain the developments in the Suit. When the defendant exhibited sheer negligence, clearly lacks bona fides in pursuing the proceedings, the delay has to be normally explained with sufficient cause. In the present case, this Court does not find that the reasons pleaded constitute sufficient cause for exercising the discretionary powers to condone the delay of 1165 days in filing the application. - 16. The Hon’ble Apex Court, recently while considering the aspect of condonation of delay in Pathapati Subba Reddy (died) by LRs. v. Special Deputy Collector (LA) , [2024 SCC OnLine SC 513] , in para.26 held as follows: “26. - 16. The Hon’ble Apex Court, recently while considering the aspect of condonation of delay in Pathapati Subba Reddy (died) by LRs. v. Special Deputy Collector (LA) , [2024 SCC OnLine SC 513] , in para.26 held as follows: “26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: - (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.” 17. The Hon’ble Apex Court in the judgment in State of Madhya Pradesh v. Ramkumar Choudhary , [2024 SCC OnLine SC 3612] , held at paras.6 and 7 as follows: “6. The Hon’ble Apex Court in the judgment in State of Madhya Pradesh v. Ramkumar Choudhary , [2024 SCC OnLine SC 3612] , held at paras.6 and 7 as follows: “6. At the same time, we cannot simply brush aside the delay occurred in preferring the second appeal, due to callous and lackadaisical attitude on the part of the officials functioning in the State machinery. Though the Government adopts systematic approach in handling the legal issues and preferring the petitions/applications/appeals well within the time, due to the fault on the part of the officials in merely communicating the information on time, huge revenue loss will be caused to the Government exchequer. The present case is one such case, wherein, enormous delay of 1788 days occasioned in preferring the second appeal due to the lapses on the part of the officials functioning under the State, though valuable Government lands were involved. Therefore, we direct the State to streamline the machinery touching the legal issues, offering legal opinion, filing of cases before the Tribunal/Courts, etc., fix the responsibility on the officer(s) concerned, and penalize the officer(s), who is/are responsible for delay, deviation, lapses, etc., if any, to the value of the loss caused to the Government. Such direction will have to be followed by all the States scrupulously. - 7. There is one another aspect of the matter which we must not ignore or overlook. Over a period of time, we have noticed that whenever there is a plea for condonation of delay be it at the instance of a private litigant or State the delay is sought to be explained right from the time, the limitation starts and if there is a delay of say 2 years or 3 years or 4 years till the end of the same. For example if the period of limitation is 90 days then the party seeking condonation has to explain why it was unable to institute the proceedings within that period of limitation. What events occurred after the 91st day till the last is of no consequence. The court is required to consider what came in the way of the party that it was unable to file it between the 1 st day and the 90 th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. The court is required to consider what came in the way of the party that it was unable to file it between the 1 st day and the 90 th day. It is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before the limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. (See : Ajit Singh Thakur Singh v. State of Gujarat, (1981) 1 SCC 495 : AIR 1981 SC 733 ).” - 18. The Hon’ble Apex Court in its judgment in Thirunagalingam v. Lingeswaran , [2025 SCC OnLine SC 1093] also held at paras.31 and 32 as follows: “31. It is a well-settled law that while considering the plea for condonation of delay, the first and foremost duty of the court is to first ascertain the bona fides of the explanation offered by the party seeking condonation rather than starting with the merits of the main matter. Only when sufficient cause or reasons given for the delay by the litigant and the opposition of the other side is equally balanced or stand on equal footing, the court may consider the merits of the main matter for the purpose of condoning the delay. 32. Further, this Court has repeatedly emphasised in several cases that delay should not be condoned merely as an act of generosity. The pursuit of substantial justice must not come at the cost of causing prejudice to the opposing party. In the present case, the respondents/defendants have failed to demonstrate reasonable grounds of delay in pursuing the matter, and this crucial requirement for condoning the delay remains unmet.” 19. The pursuit of substantial justice must not come at the cost of causing prejudice to the opposing party. In the present case, the respondents/defendants have failed to demonstrate reasonable grounds of delay in pursuing the matter, and this crucial requirement for condoning the delay remains unmet.” 19. Keeping in view the dictum laid down by the Hon’ble Apex Court in the aforesaid judgments, if aforesaid parameters are tested with the facts of the present case, this Court has no other go except in coming to conclusion that the defendant exhibited sheer negligence and was not bona fide in pursuing the lis. Therefore, it is not entitled for seeking condonation of delay of 1165 days in preferring petition for setting aside ex parte decree. The order passed by the learned trial Judge does not suffer from any infirmity much less perversity. - 20. Accordingly, both the Civil Revision Petition and the Civil Miscellaneous Appeal are dismissed without costs. As a sequel, miscellaneous petitions pending consideration, if any, in this case shall stand closed.