This common order dismisses two common revisions challenging an ex parte decree and an execution order. The court held that a delay of over 2.5 years to set aside the ex parte decree is not justified, and consequently, the execution decree must be enforced.
Both revisions are dismissed and each miscellaneous petition is disposed of.
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 SRI JUSTICE L.NARASIMHA REDDY
C.R.P.Nos.3436 of 2010 and 4896 of 2012
COMMON ORDER :
Both the revisions are between the same parties. Hence, they are disposed of through a common order.
The respondent filed O.S.No.7 of 2002 in the Court of against the petitioner for the relief of specific performance of an agreement of sale. The suit was decreed ex parte on 05.04.2006. Thereafter, the respondent filed E.P.No.65 of 2008 for execution of the decree.
The petitioner filed an application under Rule 13 of Order 9 C.P.C. with a prayer to set aside the ex parte decree. Since there was delay of 958 days in filing the application, he filed I.A.No.89 of 2009 under Section 5 of the Limitation Act. The application was opposed by the respondent. Through its order, dated 08.06.2010, the trial Court dismissed the application. C.R.P.No.3436 of 2010 is filed against the said order. In the E.P., the respondent prayed for a direction to the petitioner to execute registered sale deed in respect of the schedule property and that the Court itself may register the document, if the petitioner fails to comply with the direction. After hearing both the parties, the executing Court allowed the E.P. through order, dated 06.07.2012. C.R.P.No.4896 of 2012 is filed challenging the order in the E.P.
Heard learned counsel for the petitioner and learned counsel for the respondent.
The petitioner did receive notice in the suit and entered appearance. However, he did not appear before the Court on several occasions. Left with no alternative, the trial Court decreed the suit. The application to set aside the ex parte decree was filed only after two and half years. The only reason mentioned by the petitioner in the affidavit filed in support of that I.A. is that he suffered illness due to Malarial fever. It is just unimaginable that the effect of Malarial fever would remain for two and half years. Further, he did not adduce any evidence, much less did he file any documents to prove his contention. The trial Court has taken correct view of the matter and dismissed the I.A. This Court is not inclined to take a different view.
Once the efforts made by the petitioner to get the ex parte decree set aside are not successful, the inescapable conclusion is that the decree must be executed. The order passed in the E.P. accords with law and no exception can be taken to it.
Therefore, both the revisions are dismissed.
The miscellaneous petitions filed in these revisions shall also stand disposed of. There shall be no order as to costs.
____________________ L.NARASIMHA REDDY, J
Date: 22.04.2013 JSU
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
C.R.P.Nos.3436 of 2010 and 4896 of 2012
Date: 22.04.2013
JSU
3 issues framed by the court
Whether the ex parte decree should be set aside despite a delay of 958 days in filing the application.
Whether the executing court's order directing registration of the sale deed by the court if the petitioner fails to comply is legal.
Whether the revisions against the dismissal of the set aside application and the execution order should be allowed.
3 provisions across 2 enactments
Petitioner
Respondent
L.Narasimha Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
