In a civil revision under Article 227 regarding a suit for specific performance, the High Court dismissed the petitioner's challenge against the trial court's order setting aside an ex parte decree and allowing the defendant's plea of condonation of delay.
Civil revision petition dismissed with no order as to costs.
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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No. 5816 of 2011
ORDER:
This revision is directed against the order dated 14.12.2011 in I.A.No.1296 of 2011 in O.S.No.1726 of 2004 on the file of the Principal Junior Civil Judge, Nellore, whereby and whereunder the learned Junior Civil Judge allowed the petition filed under Order IX Rule 13 CPC.
The petitioner is the plaintiff and the respondent is the defendant in O.S.No.1726 of 2004. The plaintiff filed the suit for specific performance. The said suit ended in decree on 08.12.2008. Thereafter, the defendant filed petition under Order IX Rule 13 CPC along with delay condonation petition. The delay condonation petition came to be allowed and thereupon the plaintiff carried the matter in revision in CRP No.4448 of 2011 and the said revision (CRP 4448 of 2011) ended in dismissal on 28.12.2011. Thereafter, the trial Court took up the petition filed by the defendant under Order IX Rule 13 CPC and allowed the same by order dated 14.12.2011. The defendant pleaded in the affidavit filed in support of the petition under Order IX Rule 13 as well as delay condonation petition that he fell ill after coming over to Hyderabad and therefore he could not pursue the proceedings in O.S.No.1726 of 2004. The plea advanced by the defendant in the delay condonation petition has been accepted and delay came to be condoned. The learned Principal Junior Civil Judge accepted the same reason to set aside the exparte decree also and, accordingly, allowed the petition filed under Order IX Rule 13 CPC. Hence, this revision by the plaintiff.
Heard learned counsel appearing for the petitioner-plaintiff and perused the order impugned in the revision.
Learned counsel appearing for the petitioner-plaintiff submits that the respondent-defendant has not filed any document to show that he fell ill after he came over to Hyderabad and therefore, the trial Court ought not to have set aside the ex parte decree. A fact remains that the plea advanced by the respondentdefendant in delay condonation petition has been accepted by the trial Court and thereupon the petitioner-plaintiff carried the matter in revision to this Court and the revision in CRP No.4448 of 2011 ended in dismissal. When once the plea advanced by the respondent-defendant in delay condonation petition has been accepted the same holds good even for the petition filed under Order IX Rule 13 CPC. The trial Court considered the material brought on record and came to the conclusion that the respondentdefendant offered sufficient reasons to set aside the exparte decree.
I do not see any illegality or irregularity warranting interference of this Court in the order impugned in the revision in exercise of powers under Article 227 of the Constitution of India.
Accordingly, the civil revision petition is dismissed. There shall be no order as to costs.
B. Seshasayana Reddy, J
03rd January, 2012
KSM
1 issue framed by the court
Whether there is any illegality or irregularity in the trial court setting aside the ex parte decree on sufficient reasons.
2 provisions across 2 enactments
Plaintiff
Defendant
B. Seshasayana Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
