The High Court dismissed a civil revision petition challenging the trial court's refusal to condone delay in setting aside an ex parte decree in a partition suit, holding the appellant failed to show any bona fides after sleeping over rights for years.
The civil revision petition is dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.7042 of 2018
ORDER:
This Civil Revision Petition is filed under Section 115 CPC against the order dated 13.08.2018 dismissing the petition in I.A.No.492 of 2017 in O.S.No.75 of 2013 on the file of the Court of Senior Civil Judge, Tanuku filed by the first defendant under Section 5 of the Limitation Act to condone delay of 203 days in filing petition to set aside the ex parte decree dated 07.02.2017.
The parties are arrayed in the same manner as before the trial Court. The first respondent/plaintiff filed suit for partition against two sons (D-1 and D-2) and two daughters (D-3 and D-4). She claimed that her husband Rama Rao got the property under a Will dated 08.03.1995 executed by his mother Venkateswaramma and that her husband Anand Rama Rao died intestate.
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set aside ex parte decree was caused due to lack of knowledge and that the delay is neither willful nor wanton, but it happened due to mischief, fraud played by the plaintiff/R-1 and the third defendant/R-4, by not giving notice on the affidavits filed in evidence by them and that the suit was collusively filed by the 1st and 4th respondents though they knew about the will executed by the father in favour of the 1st and 2nd defendants and the same was also pleaded in the written statement. He came to know about the proceedings only on receipt of notice in the final decree.
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from their counsel, but the petitioner failed to do so and kept quite for such a long time and filed the petition just to harass this defendant.
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and further that even if application is allowed no prejudice would occur to the respondents.
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respondent, it is not just the present delay; the inordinate delay even during the pendency of the suit indicates that the petitioner slept over his right to contest the suit.
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There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J
Dt. 09-12-2022
PNV
3 issues framed by the court
Whether the appellant has shown sufficient cause to condone the inordinate delay in filing the petition to set aside the ex parte decree?
Whether the delay during the pendency of the suit negates the sufficiency of the plea to condone delay after the decree?
Whether an advocate's mistake can be used as an excuse when the appellant failed to exercise due diligence during litigation?
2 provisions across 2 enactments
Defendant No.1/Apellant
Plaintiff/First Respondent
B.S.BHANUMATHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
