In two common civil revision petitions, the court dismissed appeals against orders rejecting the petitioner's applications for condonation of delay in setting aside an ex parte decree and staying execution proceedings, citing the petitioner's failure to pursue the suit diligently.
Both Civil Revision Petitions were dismissed with no 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 MR JUSTICE GHULAM MOHAMMED CIVIL REVISION PETITION Nos.1712 and 1713 of 2011
COMMON ORDER
Since the parties as well as the issue involved in both these revisions are one and the same, they are being disposed of together by this common order.
2. The respondent filed O.S.No.426 of 2004 on the file of the Chief Judge, City Civil Court, Hyderabad, for specific performance of an agreement of sale and the same was decreed ex parte on 17.11.2005. The respondent/decree holder filed E.P.No.45 of 2009 for its execution. At this stage, the petitioner filed I.A.No.3125 of 2009 under Section 5 of Limitation Act for condonation of delay of 1367 days in preferring the application to set aside the ex parte decree and judgment passed in O.S.No.426 of 2004 and E.A.No.106 of 2009 seeking to stay all further proceedings in E.P.No.45 of 2009. The Court below dismissed both these applications. Aggrieved by the same, the petitioner filed the present civil revision petitions.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
4. Learned counsel for the petitioner contended that the petitioner was not aware of the suit as well as E.P. proceedings
and that the respondent in collusion with some others created records of payment, filed the said suit and obtained ex parte decree by playing fraud. She further contended that the petitioner came to know about the ex parte decree only when O.S.No.241 of 2008 was filed on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. Thus, she seeks to condone the delay and to stay all further proceedings in E.P.
5. On the other hand, learned counsel for the respondent contended that the petitioner had received summons in the suit and had been represented through his counsel, but did not file written statement in spite of repeated adjournments and as such, the Court below passed an ex parte decree in favour of the respondent, who later proceeded further for execution of the same. He further contended that the petitioner has not sufficiently explained the delay of four years in preferring the application for setting aside the ex parte decree and that the Court below considering all the aspects dismissed those applications by the orders impugned, which need not be interfered with by this Court.
6. A perusal of the order impugned shows that though the petitioner was represented by his counsel, he did not file written statement provided several opportunities and finally, on 20.06.2005, the petitioner was set ex parte and the matter was adjourned for plaintiff’s evidence. For setting aside the said order of ex parte, the learned counsel appearing for the petitioner in the suit filed I.A.No.2824 of 2005 on 12.09.2005, but the same was
dismissed for non-prosecution and ultimately, the suit was decreed ex parte on 17.11.2005. In the circumstances, it can be presumed that the petitioner has not pursued the matter in proper perspective and he filed I.A. for condonation of delay of four years only after the respondent-decree holder filed E.P. for execution of the ex parte decree, without explaining sufficient reasons for the said inordinate delay. Therefore, I do not find any infirmity in the orders impugned warranting interference by this Court.
Accordingly, both the Civil Revision Petitions are dismissed. No costs.
_____________________ GHULAM MOHAMMED, J
Date:22.07.2011
sj
2 issues framed by the court
Whether the Civil Revision Courts acted arbitrarily in dismissing the petitioner's application for condonation of delay and staying execution proceedings.
Whether the High Court ought to interfere with the lower court's dismissal of applications to set aside an ex parte decree due to inordinate delay.
1 provisions across 1 enactments
PETITIONER
RESPONDENT
GHULAM MOHAMMED
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
