Andhra HC (Pre-Telangana)
Divisional Engineer (Operations), ... vs Shaik Mohammed on 8 April, 1996
Equivalent citations: 1996(3)ALT365, 1996 A I H C 4982, (1996) 3 ANDH LT 365, (1996) 2 CIVILCOURTC 324, (1996) 3 ANDHLD 336
ORDER B.K. Somasekhara, J.
1. The question that arises in this revision petition is whether a revision Under Section 115 of the Civil Procedure Code lies or maintainable when an application filed under Section 5 of the Limitation Act to condone the delay in filing the petition under Order 9, Rule 13 of the Civil Procedure Code (in short 'C.P.C.') is dismissed by the Court.
2. The question is confronted to this Court for these factual concessions. The petitioners are the defendants in O.S.No. 312 of 1991 on the file of the Principal District Munsif, Nizamabad. The respondent filed the suit against the petitioners. It was decreed ex parte on 23-9-1993. The petitioners filed an application under Order 9, Rule 13 of C.P.C. to set aside the ex parte decree. I. A.No355 of 1994 is filed Under Section 5 of the Limitation Act to condone the delay of 179 days (according to the learned Principal District Munsif, Nizamabad) by giving certain reasons in the application. The learned Munsif dismissed the application for condonation of delay. Aggrieved by that, the petitioners filed this revision petition.
3. Having heard both the sides on the above question, this Court is considering whether a revision lies Under Section 115 of C.P.C. in such a situation or whether an appeal lies under Order 43, Rule 1 (d) of C.P.C. Mr. Pramod, learned Advocate appearing for the learned Advocate for the petitioners contends that since the application Under Section 5 of Limitation Act is dismissed regarding which no appeal lies under Order 43, Rulel(d) of C.P.C., a revision petition lies in the present manner. Sri P.S. Murthy, learned Advocate for the Respondent contends that no revision lies and only an appeal lies.
4. The law appears to be simple and transparent in regard to the appeals and revisions arising out of the decisions of the Courts. An application to set aside a decree passed ex parte lies under Order 9, Rule 13 of C.P.C. If such an application is disposed of, an appeal lies under Order 43, Rule 1 (d) of C.P.C. An application under Order9,Rulel3ofCP.C. to set aside an exparte decree should be filed within thirty days from the date of decree or where the summons or notice was not duly served when the applicant had knowledge of the decree in view of Article 123 of the Limitation Act, 1963, however, subject to the provisions contained in Sections 4 to 24 of the Limitation Act. Every suit, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence, in view of Sec3 of Limitation Act. If an application under Order 9, Rule 13 C.P.C. is not filed within the period of limitation as prescribed in Article 123 of the Limitation Act, it is mandatory for the Court to dismiss the petition, however, subject to Sections 4 to 24 of the Limitation Act which includes Section 5 also. If the delay in filing the application is condoned Under Section 5 of the Limitation Act, then the application under Order 9, Rule 13 C.P.C. will be considered or entertained. If either no application is made to condone the delay or if an application filed for condoning the delay is dismissed, the application to set aside the ex parte decree should be automatically dismissed by virtue of Section 3 of the Limitation Act. In that event it makes no difference at all. In other words, failure to condone the delay in filing the application Under Section 5 of the Limitation Act tantamounts to dismissal of the petition under Order 9, Rule 13 C.P.C. by virtue of Section 3 of the Limitation Act. In effect an order passed Under Section 5 of the Limitation Act would result in an order of dismissal of the petition filed under Order 9, Rule 13 C.P.C. within the strict legal sense and the mandatory consequences become appealable under Order 43, Rule 1 (d) C.P.C. In such a situation, dismissal of the petition Under Section 5 of the Limitation Act would become redundant to think that a revision Under Section 115 of C.P.C. lies. There is one more legal logic behind this proposition. There cannot be an application Under Section 5 of Limitation Act unless an application under Order 9, Rule 13 C.P.C. is filed. If merely an application Under Section 5 of the Limitation Act is permissible as an original petition, perhaps then if there is no provision for appeal under Order 43, Rule 1 (d) C.P.C. perhaps a revision petition Under Section 115 C.P.C. may lie. In such a situation, a proper construction of Order 9, Rule 13 C.P.C., Sections 3,4 and 5 of Limitation Act and Article 123 of the Limitation Act would conclusively and legally confirm that no revision Under Section 115 C.P.C. would either lie or become maintainable.
5. Apart from all this, there is one more legal protection afforded to the parties in dealing with such petitions. An application Under Section 5 of the Limitation Act deals with the condonation of delay in filing the proceedings before the Court. The parties who come before the Courts late than expected are to explain the reasons for such a delay regarding which the Courts should be satisfied to condone. It involves the questions of fact primarily and secondly the mixed questions of law and facts and also questions of law. The Court of first Appeal can consider both facts and law and mixed questions of law and facts while dealing with such question. The scope of petition Under Section 115 of C.P.C. by way of a revision is very much limited and subject to strict parameters of the provision. Therefore, a party suffering an order of dismissal under Order 9, Rule 13 C.P.C. and its failure to convince the Court about the delay in filing the petition invoking Section 5 of the Limitation Act has better opportunity of convincing the Court in first Appeal on facts in addition to questions of law, etc. than in a revision petition Under Section 115 C.P.C Therefore, both from the beginning and end of justice, it is the true implication of law under the provisions stated above that an appeal lies under Order 43, Rule 1 (d) C.P.C in a case where a petition under Order 9, Rule 13 C.P.C. would get dismissed itself by virtue of Section 3 of the Limitation Act on the dismissal of the application Under Section 5 of the Limitation Act. Therefore, this petition has no merit to admit for want of maintainability as the real remedy for the petitioner is an appeal under Order 43, Rule 1 (d) C.P.C. With these observations, this petition is disposed of with liberty to the petitioner to seek appropriate remedy in accordance with law as observed above. It is made very clear that if an appeal is filed in such a situation, the petitioner shall be entitled to the benefit of Sections 5 and 14 of the Limitation Act, No. costs.