Sara Chandrasekhararao And ... vs Nagam Surya Prabhavathi
2022 Latest Caselaw 1695 AP

            THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI


              C R P Nos.4252 of 2018 & 6902 of 2017


COMMON ORDER:


      C.R.P.No.4252 of 2018 is directed against the order, dated

09.04.2018 passed in I.A.No.91 of 2018 in O.S.No.73 of 2008 on the

file of the Court of Junior Civil Judge, Prathipadu, East Godavari

District.


      C.R.P.No.6902 of 2017 is directed against the order dated

14.09.2017 passed in E.A.No.114 of 2012 in E.A.No.115 of 2010 in

E.P.No.55 of 2007 in O.S.No.272 of 2004 on the file of Senior Civil

Judge, Peddapuram, East Godavari District.


2.    When C.R.P.No.4252 of 2018 came up for consideration before a

Coordinate Bench of this Court, it was represented by the learned

counsel for the parties that another revision in C.R.P.No.6902 of 2017

is pending and that both the revisions are connected. Thus, as per the

directions of the Hon'ble The Chief Justice, these two revisions are

listed, heard together and are being disposed of by this common

order.


3.    On 25.02.2022, submissions of Sri K.B.Ramanna Dora, learned

counsel for the petitioner in C.R.P.No.6902 of 2017 and respondent in

C.R.P.No.4252 of 2018 were heard. Subsequently, on 06.04.2022,

submissions of Sri Ch.Ganga Kumar, learned counsel for the

petitioners in C.R.P.No.4252 of 2018 were heard.

4. The facts in C.R.P.No.4252 of 2018, in brief, are as follows:

The plaintiff, Nagam Surya Prabhavathi, filed the suit against the

defendants 1 & 2, Sara Chandrasekhara Rao and Sara Devika, for

specific performance of alleged agreement of sale with costs and other

reliefs. The defendants filed written statement resisting the suit.

After framing of the issues, the suit was posted for trial. As the

defendants did not represent the matter, the Court below decreed the

suit ex parte on 31.10.2012. Later, the defendants have not pursued

the suit proceedings. Subsequently, the defendants received notice in

E.P.No.4 of 2016. The defendants were advised to file petition to set

aside the ex parte decree, dated 31.10.2012. As there was a delay of

1742 days in the petition to set aside the ex parte decree, dated

31.10.2012, passed in the suit, the defendants filed I.A.No.91 of 2018

in O.S.No.73 of 2008 to set aside the ex parte decree, dated

31.10.2012. The Court below, by order, dated 09.04.2018, dismissed

I.A.No.91 of 2018 as infructuous observing that the decree is not an

ex parte decree and as the defendants did not come forward for

adducing evidence, their evidence was closed and judgment was

pronounced. Aggrieved by the said order, C.R.P.No.4252 of 2018 was

preferred by the defendants.

5. As regards C.R.P.No.6902 of 2017, it was represented that the

revision petition has become infructuous as the execution petition was

disposed of. Hence, the facts in the said revision are not stated here,

in detail.

6. As regards, C.R.P.No.4252 of 2018, it is mainly contended that

instead of considering the aspect as to whether the petitioner has

shown sufficient cause for the delay in filing petition under Order IX

Rule 13 CPC, the Court below erroneously dismissed the petition

beyond the scope of the enquiry in the petition. The other grounds

raised in the revision petition relate to the merits in the suit claim,

which do not deserve any consideration in this revision petition.

7. Since the petition in I.A.No.91 of 2018 is filed to condone delay

of 1742 days in filing petition under Order IX Rule 13 CPC, the trial

Court has rightly observed that the petition is infructuous as the

judgment and decree in respect of which the petition under Order IX

Rule 13 CPC is proposed to be filed is not maintainable as the decree

and judgment were passed on merits after the defendant had not

come forward to adduce evidence. Therefore, it is not open for the

revision petitioners to say that the court below has improperly

disposed of the petition beyond the scope of the enquiry contemplated

under the provisions of Section 5 of the Limitation Act under which the

petition was filed. Thus, no merit is shown by the revision petitioners

that the decree and judgment passed in the suit are not on merits but

only ex parte decree and judgment. Thus, the revision petition is

liable to be dismissed.

8. Accordingly, C.R.P.No.4252 of 2018 is dismissed. C.R.P.No.6902

of 2017 is dismissed as infructuous.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, in these revisions shall

stand dismissed.

____________________ B. S. BHANUMATHI, J

08-04-2022 RAR