1 APHC010466432022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE 22nd DAY OF JULY 2026 PRESENT THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 338 OF 2022 Between: 1. RAJOLU SRINIVASA RAO, S/o Kutumba Rao, Aged 51 years, Occupation, RMP R/o D.No.2-399, Sivalayam Road, Vuyyuru, Vuyyuru Mandal, Krishna District. ...Petitioner AND 1. Sudheer Timber Depot, , Yakamuru, Rep. by its Proprietor Nukala Venkata Sambasiva Rao, S/o Linga Murthy, aged 36 years, occ. business, R/o Yakamuru, Thotlavalluru Mandal, Krishna District. ...Respondent Appeal Under Section_____against orders, Appellant submits this Memorandum of Civil Miscellaneous Appeal against the Order dated 17.08.2022 of the XI Additional District Judge, at Gudivada in dismissing I.A.No.23 of 2021 in O.S.No.1 of 2017 filed by Petitioner/ Defendant Order IX Rule 13 of Code of Civil Procedure and seeking a direction to set side the order passed in I.A.No.23 of 2021 in O.S.No.1 of 2017 on the file of the XI Additional District and Sessions Judge, Krishna at Gudivada. IA NO: 1 OF 2022 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased 2 may be pleased to stay of all further proceedings in E.P.No.24 of 2017 in O.S.No.100 of 2016 on the file of Junior Civil Judge, at Chintalapudi, West Godavari District pending disposal of the above Civil Revision Petition in the interest of justice and in the circumstances of the case. Counsel for the Petitioner: K V ADITYA CHOWDARY Counsel for the Respondent G VIJAYA BABU The Court made the following: 3 THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 338 OF 2022 JUDGMENT: 1. This Civil Miscellaneous Appeal is filed against the order dated 17.08.2022 passed in I.A.No.23 of 2021 in O.S.No.1 of 2017 on the file of the XI Additional District and Sessions Judge, Krishna at Gudivada (for short, ‘the Trial Court’), whereby the application filed by the appellant/petitioner/ defendant under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C’), seeking to set aside the ex parte decree dated 08.06.2017 passed in O.S.No.1 of 2017, was dismissed. 2. For the sake of convenience and brevity, the parties are hereinafter referred to as they were arrayed before the Trial Court. 3. The case of the petitioner/defendant is that the respondent/plaintiff filed a suit in O.S.No.1 of 2017 before the Trial Court for recovery of money based on a promissory note alleged to have been executed by him. Upon receipt of summons in the suit, the petitioner approached the respondent and questioned the filing of the suit, contending that the entire debt had already been discharged. The respondent assured him that the suit had been instituted due to oversight and that the same would be withdrawn. Believing the same, the petitioner did not appear before the Trial Court to contest the suit proceedings. Subsequently, he came to know about the ex parte decree only upon receipt of notice in E.P.No.4 of 2019. Thereafter, on 26.08.2019, he 4 filed I.A.No.998 of 2019 seeking condonation of delay of 779 days in filing an application under Order IX Rule 13 CPC and simultaneously filed the present application, which was later numbered as I.A.No.23 of 2021, seeking to set aside the ex parte decree dated 08.06.2017. 4. I.A.No.998 of 2019 was filed under Section 5 of the Limitation Act for condonation of the delay of 779 days in filing the application under Order IX Rule 13 CPC. The present application, namely I.A.No.23 of 2021, was filed to set aside the ex parte decree dated 08.06.2017 passed in O.S.No.1 of 2017. 5. The learned Trial Judge, by order dated 17.12.2020, allowed I.A.No.998 of 2019 by condoning the delay of 779 days. The relevant portion of the order reads as follows: Taking the respective contentions into consideration it is pertinent to say that undoubtedly the decree obtained by the respondent is an exparte decree as seen from the contention of both parties and it is also apparently clear that the respondent herein preferred E.P.4/2019 against the decree and judgment in O.S.1/2017 passed against the petitioner on 8.6.2017 and as seen from the contentions of the counsel for petitioner he was under the impression that the suit will be withdrawn by the respondent as the petitioner contends that he discharged the entire amount due. But as the respondent went ahead with the suit and obtained an exparte decree and it came to light only after receipt of the notice in E.P.4/2019. So the petitioner contends that this delay occurred only due to his bonafide impression that the respondent will with draw the suit and as seen from the contentions of the respondent, the respondent resisted the petition on the ground that the delay of 779 days is an inordinate delay and no sufficient reason is assigned to condone the same. However Sec.5 of the Limitation Act, 1963 says each day delay occurred has to be explained by the petitioner and it is settled legal analogy that if sufficient cause is shown, liberal view can be taken in applications of such nature and if sufficient cause is assigned, there is no necessity for explaining the each day delay occurred in preferring a petition to set aside the default order and in the instant petition on hand, it is clear from the contentions of the counsel for petitioner that he is 5 under a bona fide impression that the suit will be withdrawn by the respondent/plaintiff, he did not participate in the proceedings in O.S.1/17 and he was not aware until he received notice in E.P.4/2019 and immediately he preferred the present petition on coming to know about the same, in the mean time, this delay occurred. So, the reason assigned can be said to be a sufficient cause within the ambit of Sec.5 of the Limitation Act. Undoubtedly, the delay occurred is an inordinate delay and not a meager delay. However the petitioner is intending to participate in the proceedings to put forth his case, hence there is tenacity in the contention of counsel for petitioner and this petition deserves to be allowed. In the result, the petition is allowed subject to condition that the petitioner shall pay costs of Rs.300/- to the respondent on or before the date of adjournment, failing which, this petition shall stand dismissed. ……. 6. Thereafter, the application under Order IX Rule 13 CPC was taken on file as I.A.No.23 of 2021. It is evident from the record that both the applications were filed on the same day, i.e., 26.08.2019. 7. However, by the impugned order dated 17.08.2022, the learned Trial Judge dismissed I.A.No.23 of 2021 holding that the petitioner had not produced any substantial material to establish that the respondent had assured withdrawal of the suit and that there was no sufficient or justifiable reason for his failure to appear before the Court and contest the suit. 8. Heard Ms. G. Arti, learned counsel for the appellant/petitioner, and Sri G. Vijaya Babu, learned counsel for the respondent/respondent. 9. Learned counsel for the appellant/petitioner/defendant contended that the pleadings in both I.A.No.998 of 2019 filed under Section 5 of the Limitation Act and I.A.No.23 of 2021 filed under Order IX Rule 13 CPC are identical. Having accepted the explanation offered by the petitioner and condoned the 6 delay of 779 days, the Trial Court ought not to have dismissed the application under Order IX Rule 13 CPC by recording findings contrary to those already rendered while considering the application under Section 5 of the Limitation Act. It is submitted that the Trial Court failed to appreciate its own earlier findings and erroneously concluded that there was no sufficient explanation for the petitioner's non-appearance. 10. Per contra, learned counsel for the respondent/respondent/plaintiff submitted that the considerations governing an application under Section 5 of the Limitation Act and an application under Order IX Rule 13 CPC are distinct. Merely because the delay was condoned, it does not automatically follow that the ex parte decree has to be set aside. The Trial Court rightly held that the petitioner had failed to establish sufficient cause for remaining absent despite service of summons. 11. This Court has considered the rival submissions and perused the material available on record. While allowing I.A.No.998 of 2019, the Trial Court accepted the explanation of the petitioner that he was under a bona fide impression that the respondent would withdraw the suit, in view of the alleged assurance given by the respondent that the suit had been filed by oversight. The Trial Court also considered the petitioner's contention that the debt had already been discharged and held that the explanation offered constituted sufficient cause for condoning the delay of 779 days. The delay was accordingly condoned to enable the petitioner to contest the suit on merits. 7 12. The object underlying Order IX Rule 13 CPC is to provide an opportunity to a party to contest the proceedings on merits when sufficient cause is shown for non-appearance. It is well settled that the Courts should adopt a liberal approach while considering such applications and endeavor to decide the matters on merits rather than on technical grounds, provided that no prejudice is caused to the opposite party. 13. In the present case, the explanation offered by the petitioner for his non- appearance before the Trial Court and the delay in filing the application are founded on the same set of facts. Having accepted the said explanation while allowing I.A.No.998 of 2019, the Trial Court could not have taken a contrary view while deciding I.A.No.23 of 2021, particularly in the absence of any additional material or changed circumstances. Though the scope of an application under Section 5 of the Limitation Act and an application under Order IX Rule 13 CPC may not be identical, the factual foundation for both applications in the present case remains the same. Therefore, the findings recorded by the Trial Court in the impugned order are inconsistent with its earlier order dated 17.12.2020 passed in I.A.No.998 of 2019. The said findings cannot be sustained and the impugned order is liable to be set aside. 14. Accordingly, the order dated 17.08.2022 passed by the learned XI Additional District and Sessions Judge, Krishna at Gudivada, in I.A.No.23 of 2021 in O.S.No.1 of 2017 is set aside. Consequently, I.A.No.23 of 2021 is allowed and the ex parte decree dated 08.06.2017 passed in O.S.No.1 of 2017 is set aside. The suit in O.S.No.1 of 2017 is restored to its file. Since the 8 suit is of the year 2017, the Trial Court is directed to proceed with the matter expeditiously and dispose of the suit after affording reasonable opportunity to both parties, preferably within a period of six (06) months from the date of receipt of a copy of this judgment. 15. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. __________________________ JUSTICE BALAJI MEDAMALLI Date: 22.07.2026 SAK Whether the Judgment is: Speaking ☑ Reasoned ☑ Reportable Non-reportable 9 THE HONOURABLE SRI JUSTICE BALAJI MEDAMALLI CIVIL MISCELLANEOUS APPEAL NO: 338 OF 2022 Date: 22.07.2026 SAK