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Thursday, August 7, 2014

Delay of 1653 - C.C. copy of Exparte Decree dt.3-8-2006, obtained on 2-11-2010 - Set aside petition filed on 25-2-2011 more than 4 months - Trial court dismissed the I.A. - their lordships held that at every stage of proceedings, the petitioner demonstred laxity and no anxiety was shown to prosecute the matter - even though for setting exparte decree when summons not served is only from the date of knowledge, the petitioner has not furnished any reasons for 4 months delay after obtaining certified copy of exparte decree dt.3-8-2006 and held that the trial court rightly dismissed the I.A. =CIVIL REVISION PETITION No. 5196 of 2012 10-07-2014 1.Bommadevu Subbalakshmi, W/o Manikyalu, R/o Vannepudi, Gollaprolu Mandal, E.G.Dist. 2. Bommadevu Kameswararao, S/o Manikyalu, R/o Vannepudi, Gollaprolu Mandal E.G.Dist. At present residing at Srikakulam. 1.Gundubilli Subbarao, S/o Ganga Raju, kOTTANANDURU vILLAGE & Mandal, E.G.Dist. 2.Bommadevu Manikyalu /(DIED), 3. hUNDUBILLI sUBBALAKSHMI w/O Subbarao, Kotananduru Village & Mandal, E.G.Dist. = 2014 - july.part - http://judis.nic.in/judis_andhra/filename=11650

 Delay of 1653 - C.C. copy of Exparte Decree dt.3-8-2006, obtained on 2-11-2010 - Set aside petition filed on 25-2-2011 more than 4 months - Trial court dismissed the I.A. - their lordships held that at every stage of proceedings, the petitioner demonstred laxity and no anxiety was shown to prosecute the matter - even though for setting exparte decree when summons not served is only from the date of knowledge, the petitioner has not furnished any reasons for 4 months delay after obtaining certified copy of exparte decree dt.3-8-2006  and held that the trial court rightly dismissed the I.A. =
In the
instant case, 1653 days was the delay that was prayed to be condoned.
At every stage of the proceedings, there was demonstrable laxity and no
anxiety was shown on the part of the petitioners to prosecute the matter
diligently. 
In such a fact scenario, condonation of such a huge delay
would not sub-serve the cause of justice.
On the other hand, it would be defeating the ends of justice.
A party who came to know about an exparte
decree, going by his own showing, by October 2010 could not have taken
a further nearly four months time to file an interlocutory application for
setting aside such an exparte decree. 
I, therefore, find no merit in the
plea that the period of limitation, in matters of this nature, should be
computed only from the date of knowledge but not the actual date on
which the decree is passed, for, in the instant case, even upon coming to
know and even after obtaining the certified copies of the judgment and
decree on 02.11.2010, the petitioners have not acted promptly but filed
the applications only on 25.02.2011. 
The whole exercise, as is rightly
contended before the Court below by the plaintiff in the suit, is intended
to delay as far as one could, the execution proceedings. Though, the
normal rule requires that every days delay shall be explained for
purposes of condonation of delay, but even if relaxed standards and
norms are applicable in cases where a party pleads want of knowledge of
the event itself, even in such cases honest and bonafide efforts made for
taking appropriate steps with promptitude should be demonstrated.
Sadly no effort is made to exhibit the steps taken promptly after
02.11.2010 for getting the decree set-aside.
 I am convinced, hence, that
there are no bonafidees behind this exercise.
Further, there is no error
committed by the Trial Court in dismissing I.A.No.187 of 2011.
        Since, there was no error committed either jurisdictional or legal
by the Court below, it is not a fit case for exercise of the jurisdiction by
me under Article 227 of the Constitution of India and accordingly, the
revision stands dismissed, but however without costs.
        Miscellaneous applications if any shall stand dismissed.
2014 - july.part - http://judis.nic.in/judis_andhra/filename=11650

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No. 5196 of 2012  

10-07-2014

1.Bommadevu Subbalakshmi, W/o Manikyalu, R/o Vannepudi, Gollaprolu Mandal,    
E.G.Dist.
 2. Bommadevu Kameswararao, S/o Manikyalu, R/o Vannepudi, Gollaprolu Mandal  
E.G.Dist. At present residing at Srikakulam.

1.Gundubilli Subbarao, S/o Ganga Raju, kOTTANANDURU vILLAGE & Mandal, E.G.Dist.      
2.Bommadevu Manikyalu /(DIED), 3. hUNDUBILLI sUBBALAKSHMI w/O Subbarao,        
Kotananduru Village & Mandal, E.G.Dist.

Counsel for the Petitioners:Sri T.Durga Prasad Rao

Counsel ofor the respondents:None appeared/

<Gist:

>Head Note:

?Cases referred:

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No. 5196 of 2012  

ORDER:

        This civil revision petition is preferred by the petitioners in
I.A.No.187 of 2011 in O.S.No.222 of 2006.  I.A.No.187 of 2011 was
preferred under Section 5 of the Limitation Act seeking condonation of
delay of 1653 days in filing Interlocutory Application for setting aside the
exparte decree. I.A.No.187 of 2011 has been preferred on 25.02.2011.
        The petitioners are the wife and son of Sri Bommadevu Manikyalu,
the sole defendant in the suit O.S.No.222 of 2006.  The first respondent
Sri Gundubilli Subba Rao is the plaintiff in the suit. The plaintiff is the
son-in-law of the defendant. The defendant Sri Manikyalu is described to
have died on 27.07.2008.
        The suit is instituted on 28.06.2006 seeking to recover a sum of
Rs.75,000/- together with interest at 24% thereon on the foot of a
promissory note said to have been executed by the defendant on
22.03.2005.  Along with the suit, the three documents were also filed.
The first document is the original promissory note executed by the
defendant on 22.03.2005.  The document is in the handwriting of
Sri Manepalli Eswara Rao.  It was executed in the presence of (witnesses)
one 1) Sakileti Venkata Ramana Rao 2) Sri Ramoju Srinivasarao.  The
second document filed was the legal notice got issued by the plaintiff on
17.06.2006 demanding repayment of the loan amount. This legal notice
was sent by registered post with acknowledgment due. The third
document filed along with the suit was the registered postal cover
through which the legal notice was got issued, returned by the defendant
on 20.06.2006.  Along with the suit, I.A.No.956 of 2006 was filed for
attachment of land of an extent of 0.50 cents in Sy.No.85/1 and land of
an extent of 0.74 cents situate in Sy.No.85/3 of Vannepudi Village,
Gollaprolu Mandal, East Godavari District. It appears, when the
Government Amin tried to deliver the summons in the suit, the
defendant refused to receive the summons. The notice issued in the
interlocutory application 956 of 2006 in O.S.No.222 of 2006 for
attachment of certain properties before judgment was also refused. The
Court Amin filed a report that since the defendant has refused to receive
the suit summons, he affixed them on the front door of the residential
premises of the defendant and the notice of the proposed attachment
before judgment was exhibited at the land in question and the gist of the
notice in that regard was also got published in that village by beat of
tom-tom. The Secretary of the Gram Panchayat has certified about the
same. In view of the refusal to receive the summons, the defendant was
set exparte. A decree was passed on 03.08.2006 in O.S.No.222 of 2006
directing the defendant to pay a sum of Rs.97,650/- together with
subsequent interest at 12% per annum from the date of the suit
(28.06.2006) till the date of decree (03.08.2006) and thereafter at 6% per
annum till realization of Rs.75,000/- (principal amount).  The defendant
was also directed to pay a sum of Rs.6,255/- towards costs. The plaintiff
has taken out execution proceedings in E.P.No.14 of 2010.  E.A.No.127
of 2010 was filed therein proposing to bring on record Sri Bommadevu
Kameswara Rao, the second petitioner herein, as a legal representative of
the deceased defendant Sri Bommadevu Manikyalu. The notice issued by  
the Junior Civil Judges Court, Pitapuram (the executing Court) in
E.A.No.127 of 2010 in E.P.No.14 of 2010 in O.S.No.222 of 2006 is placed
at page No.39 of the paper book filed in this revision. The notice was set
and issued by the Court on 29.09.2010 fixing the date of hearing as
28.10.2010.
        The second petitioner herein has sworn to the affidavit filed in
support of I.A.No.187 of 2011 seeking condonation of delay.
In paragraph No.2 of the said affidavit, it was stated interalia as under:

        ..My father was an illiterate countryman.  
The suit summons were appears to be managed and not  
served to him.  As such he did not contest the suit, he was
set exparte and there after an ex parte decree was passed on
03-06-2006. Neither I nor my father was having any
knowledge about the suit.  It came to light that there was an
exparte decree passed against my father, only when I
received the Notice in the execution proceedings initiated
preparedly after the death of my father from the Honble
Junior Civil Judge Court, Pithapuram as an LR in respect of
EA 127/2010 in EP 14/2010 in OS 222/2006.  Then I
applied for copies of the suit material and other required
documents through my counsel and after perusing the same
we came to know about the fraud played by my brother in
law and it is pertinent to observe the factual matrix as
detailed hereunder:-

        The entire case of the petitioners herein is revitted around these
facts. I.A.No.187 of 2011 has been moved on 25.02.2011.  Along with
this paper book in the above revision, the certified copy of the judgment
passed in O.S.No.222 of 2006 on the file of the Junior Civil Judges
Court, Tuni was also filed. It appears, applications were moved for
securing the certified copies on 02.11.2010 and on the same day, the
Court of the Junior Civil Judge, Tuni has furnished the certified copy of
the judgment and the certified copy of the decree. As was already noticed
supra, the notice in E.A.No.127 of 2010 was issued by the Junior Civil
Judges Court, Pitapuram (the executing Court) on 29.09.2010 fixing the
date of hearing as 28.10.2010.  The second petitioner herein has stated
in the affidavit filed in support of I.A.No.187 of 2011, that it is after
receiving the notice in E.A.No.127 of 2010 in E.P.No.14 of 2010 in
O.S.No.222 of 2006, the petitioners have come to know about these legal
proceedings and started taking steps to collect all papers.  Thus, it is
obvious that the petitioners herein have collected the entire material by
02.11.2010.  However, Interlocutory Application No.187 of 2011 is filed
only on 25.02.2011. Nearly four months time has been taken for this
purpose after they obtained certified copies on 02.11.2010. There was no
explanation offered whatsoever by the petitioners why they have taken
nearly four months time till 25.02.2011 for filing the interlocutory
applications, one seeking the condonation o delay i.e. I.A.No.187 of 2011
and another Interlocutory Application for setting aside the exparte
decree. This reflects the casual manner in which the petitioners have
gone about treating the subject.
        The petitioners herein claim that the plaintiff in the suit has played
fraud by securing a false endorsement from the Court Ameen that the
defendant has refused to receive the suit summons and that the notice of
Interlocutory Application No. 956 of 2006 filed in O.S.No.222 of 2006
seeking attachment before judgment is also falsely shown to have been
exhibited at the land proposed to be attached. It is also suggested that
the Secretary of the local Gram Panchayat has denied and disputed any
knowledge about this exercise and also disputed his signature. However,
while dealing with I.A.No.187 of 2011, the Court has clearly indicated in
paragraph 12 of its order that the postal cover also shows that the father
of the petitioner refused the suit summons apart from the report of the
Court Amin. It is therefore clear that the suit summons have not only
been attempted to be served through the Court Ameen but also through
registered post and they were refused by the original defender.
        The petitioner was residing at Srikakulam, which was far away
from Vannepudi Village in Gollaprolu Mandal of East Godavari District,
where the original defendant was known to be residing. Therefore, the
petitioner could not have known, as a matter of fact, as to whether his
father has actually refused to receive the suit summons or not.
        Above all, the plaintiff has sent a legal notice through his advocate
on 17.06.2006 demanding the repayment of the debt based on the pro-
note. The postal authorities have returned the registered post cover
through which,  said legal notice was sent with an endorsement dated
20.06.2006.  The suit pro-note as well as the office copy of the legal
notice dated 17.06.2006 and the postal cover returned by the father of
the second petitioner herein were exhibited as Ex.A-1, A-2 and A-3
respectively in the civil suit. It is, therefore, more than clear that the
father of the second petitioner herein and the husband of the first
petitioner would have refused to receive the suit summons as well. The
petitioners, have not taken any steps either to interact with the scribe
and witnesses of the suit pronote document Ex.A-1 to know from them
about the genuineness of Ex.A-1 suit pronote, nor did the petitioners
approach the Secretary of the local Gram Panchayat and attempted to
secure any affidavit and file it along with the Interlocutory Application
No.187 of 2011.
        I.A.No.187 of 2011 was dismissed by an order passed on
28.03.2012.  The petitioners applied for a certified copy of the said order
on 04.04.2012 and a certified copy was made available to them on
11.04.2012 by the Court below. The present revision was filed under
Article 227 of the Constitution on 10.07.2012.  The Registry has returned
the same on 12.07.2012 raising an objection. Ten days time was granted
by the Registry to represent the papers after complying with the
objections. The revision was represented only on 27.09.2012, more than
two months after taking return of the papers in the revision. The revision
was taken up for consideration by this Court on 19.10.2012.  On that
day, a request was made to take up this revision along with
CRP.Nos.5008 and 4967 of 2012.  When the matter was again taken up  
on 31.10.2012, a request was made to adjourn the case by one more
week. Again when the matter was taken up on 27.12.2013, a request was
made to take up the matter after the Sankranti Holidays of the Court.
Nowhere, any explanation was offered as to why the petitioner having
obtained the certified copy of the order in I.A.No.187 of 2011 as on
11.04.2012 should wait till 10.07.2012 to prefer this revision. Since, by
the said time, the period of limitation provided for preferring a revision
under Section 115 C.P.C has expired, this revision was preferred under
Article 227 of the Constitution, as no specified time limit is prescribed for
preferring such a revision under Article 227.
        All the facts narrated supra would only disclose lack of seriousness
and bonafidees behind the claim made by the petitioners in this revision.
When a huge delay is sought to be condoned, it is expected of the
petitioners to offer reasonable explanation for such a huge delay. In the
instant case, 1653 days was the delay that was prayed to be condoned.
At every stage of the proceedings, there was demonstrable laxity and no
anxiety was shown on the part of the petitioners to prosecute the matter
diligently. In such a fact scenario, condonation of such a huge delay
would not sub-serve the cause of justice. On the other hand, it would be
defeating the ends of justice. A party who came to know about an exparte
decree, going by his own showing, by October 2010 could not have taken
a further nearly four months time to file an interlocutory application for
setting aside such an exparte decree. I, therefore, find no merit in the
plea that the period of limitation, in matters of this nature, should be
computed only from the date of knowledge but not the actual date on
which the decree is passed, for, in the instant case, even upon coming to
know and even after obtaining the certified copies of the judgment and
decree on 02.11.2010, the petitioners have not acted promptly but filed
the applications only on 25.02.2011. The whole exercise, as is rightly
contended before the Court below by the plaintiff in the suit, is intended
to delay as far as one could, the execution proceedings. Though, the
normal rule requires that every days delay shall be explained for
purposes of condonation of delay, but even if relaxed standards and
norms are applicable in cases where a party pleads want of knowledge of
the event itself, even in such cases honest and bonafide efforts made for
taking appropriate steps with promptitude should be demonstrated.
Sadly no effort is made to exhibit the steps taken promptly after
02.11.2010 for getting the decree set-aside. I am convinced, hence, that
there are no bonafidees behind this exercise. Further, there is no error
committed by the Trial Court in dismissing I.A.No.187 of 2011.
        Since, there was no error committed either jurisdictional or legal
by the Court below, it is not a fit case for exercise of the jurisdiction by
me under Article 227 of the Constitution of India and accordingly, the
revision stands dismissed, but however without costs.
        Miscellaneous applications if any shall stand dismissed.


________________________________    
NOOTY RAMAMOHANA RAO,J        
10.07.2014 

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