This judgment dismissed a civil revision petition challenging the trial court's refusal to condone a 478-day delay in filing an application to set aside an ex parte preliminary decree. The highest court held that illness without medical evidence was not sufficient cause.
The civil revision petition is dismissed; no order as to costs.
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THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.1374 OF 2019
ORDER :
This civil revision petition under Section 115 CPC is directed against the order dated 01.04.2019 in I.A.No.34 of 2017 in O.S.No.22 of 2015, on the file of the Senior Civil Judge, Bodhan, wherein the said application filed by the petitioners-defendant Nos.1 and 2 under Section 5 of the Limitation Act seeking to condone the delay of 478 days in filing the petition to set aside the ex parte preliminary decree, was dismissed.
counsel for respondent No.2. Perused the record.
in O.S.No.22 of 2015 filed by the respondent No.2-plaintiff for partition and separate possession. The said suit was decreed and an ex parte preliminary decree was passed on 01.09.2015. Subsequently, respondent No.2 filed I.A.No.233 of 2016 in the final decree petition seeking appointment of AdvocateCommissioner to divide the suit schedule property into four equal shares and pass a final decree. While so, the petitioners herein filed an application to set aside the ex parte preliminary decree
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along with an application in I.A.No.34 of 2017 under Section 5 of the Limitation Act. Respondent No.2 resisted the same. On a consideration of the material on record, the trial Court dismissed the said application stating that the petitioners failed to show sufficient cause for condoning the delay of 478 days in filing the petition to set aside the ex parte preliminary decree and in view of the fact that I.A.No.233 of 2016 for passing of final decree was already filed and proceedings are in progress wherein defendants 1 and 2 have already received notices and contesting the same. The trial court further observed that the petitioners can setforth all their grievances in the said application. Challenging the same, the present revision is filed.
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5 of the Limitation Act to condone the delay of 478 days in filing
the petition to set aside the ex parte preliminary decree.
petitioner was undergoing treatment. Admittedly, the said
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application to condone the delay of 478 days in filing the petition
to set aside the ex parte preliminary decree, without showing sufficient cause and a mere statement that the first petitioner was suffering from ill-health and was unable to file written statement, is not a sufficient cause to condone such inordinate delay.
such delay. I do not find any justifiable grounds to interfere with the impugned order refusing to condone the inordinate delay of
478 days in filing the petition to set aside the ex parte preliminary decree. The civil revision petition is liable to dismissed.
_________________________ A.SANTHOSH REDDY , J
24.02.2023 Lrkm
2 issues framed by the court
Whether the court should condone a delay of 478 days in filing a petition to set aside an ex parte preliminary decree for lack of sufficient cause.
Whether illness of a party without medical evidence constitutes sufficient cause to condone inordinate delay in setting aside an ex parte decree.
2 provisions across 2 enactments
Petitioners (Defendants 1 and 2)
Respondent No. 2 (Plaintiff)
Respondent No. 1
A. Santosh Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
