Jonnalagadda Shuhasini and Others vs Ravela Arogyaiah

C.Y. Somayajulu, J.—Petition for condonation of delay of 102 days in filing the petition to set-aside the ex parte decree filed by defendants 4 to 6 was dismissed by the trial Court. Hence this revision.

The case of the revision petitioners is that when first revision petitioner went to the Collector Office at Hyderabad for obtaining the terminal benefits of her husband, she was informed about the stay order passed in O.S. No. 151 of 2003 with regard to their payment and when she got enquiries made through her Counsel she came to know that an ex parte decree was passed against her in the suit filed by the respondent, after publishing notice in a Telugu news daily Praja Shakti for appearance of herself and her children and that she was advised to file a petition to set aside the ex parte decree with a petition to condone the delay of 102 days.

The case of the respondent is that as revision petitioners, who have knowledge about passing of the decree, have not explained the day to day delay in filing the petition to set-aside ex parte decree, delay cannot be condoned.

The contention of the learned Counsel for the revision petitioners is that since there is no personal service of notice and since limitation begins only from the date of knowledge, there really was no necessity for filing the petition u/s 5 of the Limitation Act, but due to wrong advise given by the Counsel for the petitioners in the trial Court only such petition is filed and so the Court below ought to have allowed the petition without going into the technicalities. There is no representation on behalf of the respondent though served.

As per Article 123 of the Limitation Act an application to set-aside an ex parte decree, in cases where there, is due service of notice, has to be filed within 30 days from the date of decree. When summons or notice was not duly served, petition to set-aside the ex parte decree has to be filed within 30 days of knowledge of the decree by the applicant.

In this case, there, admittedly, was no personal service of notice on the revision petitioners, and the notice to them was published in Telugu daily news paper called ''Praja Shakthi'', which does not have wide circulation, and so revision petitioners not having knowledge about the filing of the suit against them and their coming to know about the decree only when first revision petitioner went to Collector Office for receiving terminal benefits of her husband, appears to be true. In view of Article 123 of Limitation Act there really was no necessity for the revision petitioners to file a petition to condone the delay, because limitation to file the petition to set-aside the ex parte decree commences only from the date of knowledge, but not from the date of decree. The averment that first revision petitioner went to the Collector Office in June, 2004 is not in seriously disputed or denied by the respondent. Since the petition to set-aside the ex parte decree was filed on 30-6-2004, well within 30 days from the date of knowledge of the passing of the ex parte decree, it is clear that revision petitioners filed the petition u/s 5 of Limitation Act going by the advise given by their Counsel. Since there in fact was no delay in filing the petition to set-aside the ex parte decree, I am of the considered view that the trial Court was in error in dismissing the petition.

In the result, the revision is allowed and the order under revision is set-aside and I.A. No. 513 of 2004 stands allowed. The trial Court shall dispose of the petition being filed under Order IX Rule 13 on its merits, without being influenced by the observations made in this order. No costs.