Green Tech Industries India Pvt. ... vs N.S. Kamalakkannan
2021 Latest Caselaw 4667 AP

       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

          CIVIL REVISION PETITION No.2226 of 2019

ORDER:

The petitioner herein had filed O.S.No.211 of 2014 in the

Court of VII Additional District Judge, Gudur against the

respondent, for recovery of money. The respondent was set

exparte and an exparte decree dated 15.10.2015 was passed

against the respondent. Thereafter, E.P.No.523 of 2017 was

filed on the file of the IX Assistant City Civil Court at Chennai,

for recovery of Rs.22,62,009/- against the petitioner. Upon

receipt of notice in the said Execution Petition, the respondent

had filed an interlocutory application, for setting aside the

exparte order. As there was a delay of 829 days in filing the

application, the respondent had filed I.A.No.73 of 2018, to

condone the delay of 829 days in filing the application, to set

aside the exparte decree. The contention of the respondent was

that he was unaware of the filing of the suit as he did not

receive any summons, prior to the summons issued by the

Executing Court, and was unaware of the pendency of the suit

or the exparte order and as such, the delay in filing the

application to set aside the exparte order should be condoned.

2. The petitioner herein had filed a counter affidavit

taking the stand that the respondent had appeared before the

Executing Court on 13.10.2017 while the application for

condonation of delay was filed on 18.01.2018 and that the

period of delay between 13.10.2017 and 18.01.2018 has not

been explained by the respondent.

RRR,J CRP.No.2226 of 2019

3. The trial Court took into account the fact that

notices could not be served on the respondent in the suit, and

substituted service had been ordered whereby notice of the suit

was published in a prominent daily newspaper, having

circulation in the area of the respondent and that subsequently

the address of the respondent was also amended, by way of

orders dated 10.08.2017 in the Execution Petition. Taking

notice of these facts, the trial Court took the view that the

explanation of delay in filing the application for setting aside the

exparte decree, cannot be brushed aside and that a pragmatic

view needs to be taken in view of the Judgments of the Apex

Court in Collector, Land Acquisition, Anantanag and another

vs. Mst.Katiji and others1 and a Judgment of the erstwhile

High Court of A.P in Movva Anjamma and Another

Vs.Abhineni Anasuya and Another2. On this view of the

matter, the trial court allowed the condone delay application by

way of an order dated 03.05.2019.

4. Aggrieved by the said order, the present Civil

Revision Petition has been filed by the petitioner.

5. Sri C.Subodh, learned counsel for the petitioner

submits that even if the delay for the earlier period has been

explained, there is no explanation by the respondent as to why

there was a delay of about 100 days between 13.10.2017 to

18.01.2018 in filing the application to condone the delay. He

submits that every day of delay has to be adequately explained

AIR 1987 SC 1353

1999 (1) ALD 398

RRR,J CRP.No.2226 of 2019

and the total absence of any explanation for the delay between

13.10.2017 and 18.01.2018 would show that there was no

compliance with the requirements of the Section 5 of the

Limitation Act and the application should have been dismissed.

6. Sri K.V.Bhanu Prasad, learned counsel appearing

for the respondent, on the other hand contends no notice of any

nature was received by the respondent and in fact the petitioner

had not taken proper steps to serve notice on the respondent till

a decree was obtained and execution was initiated in the

executing Court. He submits that the inability of the respondent

to appear before the Court, to defend the suit and to get the

exparte order set aside, is solely on account of the wrong

address shown by the petitioner in the plaint. He submits that

the view taken by the trial Court is not an unreasonable view

which requires any interference from this Court.

7. It is true that no explanation has been offered by the

respondent for the delay in filing the applications, for setting

aside the exparte order, and for condoning the delay in filing of

such explanations, for the period between 13.10.2017 and

18.01.2018. However, the trial Judge has taken a view that in

such circumstances, it would only be appropriate to permit the

respondent to have an opportunity to defend himself. This

dispute is before this Court, by way of a Civil Revision Petition

under Section 115 of C.P.C. The said provision comes in to play

where the orders of the trial Court appear to have been passed

in exercise of the jurisdiction not vested in it by law, or the court

RRR,J CRP.No.2226 of 2019

failed to exercise a jurisdiction so vested, or acted in exercise of

its jurisdiction illegally or with material irregularity. In the

present case, the 1st and 2nd situations do not apply. As far as

the 3rd situation is concerned, this Court does not find that

there is any material irregularity in the manner in which, the

trial Court has exercised its jurisdiction. It is true that two

views are possible in the present case. The trial Court had

taken one view. This Court does not find the said view to be so

materially irregular or illegal that it requires to be set aside.

8. In the circumstances, this Civil Revision Petition is

dismissed. There shall be no order as costs.

As a sequel, the miscellaneous applications, if any

pending, shall stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

16.11.2021 RJS

RRR,J CRP.No.2226 of 2019

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

CIVIL REVISION PETITION No.2226 of 2019

16.11.2021

RJS