Andhra HC (Pre-Telangana)
Chandrapalaka Prabhakar vs Chandrapalka Sadanandam on 20 July, 1995
Equivalent citations: 1997(4)ALT689
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.M. Agarwal, J.
1. This Letters Patent Appeal has been filed by the plaintiff in the suit who was successful in obtaining an ex parte preliminary decree for partition against the respondent herein, who is hereinafter referred to as the defendant in the suit.
2. Aggrieved by the ex parte decree, the defendant in the suit filed an application under Order 9 Rule 13 CPC which was initially allowed subject to certain conditions. Those conditions were not fulfilled by him and therefore, the ex parte decree revived. Consequently, the defendant in the suit again moved an application for setting aside the ex parte decree which was dismissed. That order was maintained by this Court in a Civil Revision Petition filed by him. After disposal of the Civil Revision Petition, the defendant in the suit filed an appeal before this Court along with an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. The application was allowed by the learned single Judge. Being aggrieved the plaintiff in the suit has preferred this Letters Patent Appeal.
3. The learned Counsel for the appellant herein first argued that as the defendant had successfully pursued the matter by filing an application under Order 9 Rule 13 CPC for setting aside the exparte decree he could not challenge the decree by filing an appeal. According to him, a regular appeal under Section 96 and the remedy by way of filing an application under Order 9 Rule 13 CPC are parallel remedies and as one of the remedies was availed, the other remedy was not open. We find no substance in the contention. In an application under Order 9 Rule 13 CPC, what the Court has to see is existence or otherwise of sufficient cause for non-appearance on the date when he was proceeded ex parte by the Court; whereas in an appeal what is required to be seen by the Court is whether the decree impugned is or is not in accordance with law or supportable on the basis of material brought on record. Accordingly, we are of the view that both the remedies are open to the defendant in the suit who suffered an ex parte decree.
4. It was next argued that there was no sufficient cause for condoning the delay in filing the appeal. According to the learned Counsel, the period a spent by the defendant in pursuing the first application under Order 9 Rule 13 CPC and in prosecuting the Civil Revision Petition filed in the High Court could not be excluded Under Section 14 of the Limitation Act. We find no substance in the contention of the learned Counsel for the appellant. Firstly, the learned single Judge has not considered the application or otherwise of the provisions of Section 14 of the Act in the present case. Secondly, the finding about the existence of sufficient cause for the delay in filing the appeal is a finding of fact based on the material placed on record. It was asserted by the defendant in the suit that his wife had fallen sick and that was one of the reasons why he could not prefer appeal in time. Accordingly, we are of the view that this finding cannot be disturbed in this Letters Patent Appeal.
5. The Learned single Judge took into account the prosecution of Civil Revision Petition by the defendant only to come to a conclusion that he was diligent in prosecuting the matter and was not negligent. Unless a party is shown to be diligent in prosecuting his case, he cannot, as a matter of course, claim condonation of delay in filing an appeal or application before the Court and therefore, for this limited purpose, if the learned single Judge took into account the fact of prosecuting the Civil Revision in the High Court by the defendant, he cannot be said to have committed any illegality or irregularity in taking into account that fact and coming to the conclusion that he was diligent in prosecuting the matter. Secondly, as held by a Division Bench of this Court in Jokam Reddy v. Gokar Mallaiah, , the defendant was entitled to exclude the period spent in prosecuting his Civil Revision Petition for the purpose of computing the limitation for filing an appeal.
6. For all these reasons, we find no merit in this Lexers Patent Appeal and accordingly it is hereby summarily dismissed, but without any order as to costs.