ORDER
L. Narasimha Reddy, J.
1. The respondent filed O.S. No. 58 of 2001, against the petitioner, in the Court of Senior Civil Judge, Nizamabad, for redemption of a mortgage, covering a sum of Rs. 2,76,000/-. An ex-parte preliminary decree was passed on 3.8.2001. Thereafter, the petitioner filed LA. No. 125 of 2002, for final decree. The same was allowed on 12.8.2002. The petitioner filed an application, under Order IX Rule 13 C.P.C., to set aside the ex-parte preliminary decree, passed on 3.8.2002. Since there was delay of 873 days, he filed LA. No. 97 of 2004, under Section 5 of the Limitation Act.
2. Petitioner pleaded that he shifted his residence from Nizamabad to Vijayawada, in the year 2002, and on account of the same, he was not aware of the proceedings initiated against him, by the respondent. As regards the publication of notice in the local newspaper, he pleaded that the edition, in which the notice was published, is not circulated at the place, where he was residing, and ultimately prayed for condonation of delay.
3. The respondent filed counter-affidavit, denying the allegations of the petitioner. He pleaded that almost at the same time, when the suit was filed by him, the petitioner filed I.P. No. 18 of 2001, in the Court at Nizamabad itself, and he furnished his address in that IP as ‘Ekashila Apartments, Nizamabad’. A further plea was taken to the effect that when the summons could not be served, on account of the locking of the flat, substitute service was affected, and there is no truth in the plea taken by the petitioner.
4. The trial Court dismissed the LA., through order dated 22.6.2006. Hence, this revision.
5. Sri M Rajamalla Reddy, learned Counsel for the petitioner, submits that the delay in presentation of the application, under Order IX Rule 13 C.P.C., was properly explained, and the trial Court ought to have condoned the same. He contends that though the delay may appear to be enormous, viewed in the context of the explanation offered by the petitioner, viz., that he has shifted his residence from Nizamabad to Vijayawada; it cannot be said that the petitioner did not represent the correct facts. He places reliance upon the judgment of this Court in Padaraju Vidyasagar v. Syndicate Bank .
6. Sri P. Lakshma Reddy, learned Counsel for the respondent, on the other hand, submits that it was clearly demonstrated that the petitioner was very much residing in Nizamabad, and his contention that he shifted his residence, stood belied. He points out that the plea taken by the petitioner that he was visiting his Advocate at Nizamabad only during nights, at the relevant point of time, can hardly be believed.
7. According to the respondent, the petitioner borrowed certain amount, and as a security for repayment of the same, an item of immovable property was mortgaged. Alleging that the petitioner did not repay the amount, the respondent filed the suit for a preliminary decree. The summons in the suit could not be served upon the petitioner, personally, on account of the fact that the door of his flat was locked. Therefore, the substituted service was affected, through publication in a newspaper. The petitioner was ultimately set ex parte, and a preliminary decree ensued. Almost same exercise was repeated, in the final decree proceedings.
8. Almost after 2 1/2 years, the petitioner filed an application to set aside the ex parte decree, together with an application to condone the delay. It is true that in Padaraju Vidyasagar’s case (supra), this Court held that the Courts must be cautious, in examining the plea for condonation of delay, and pointed out that distinction must be maintained, as to the nature of service of notices. An occasion to apply these principles arises, when a party did not reside at the address mentioned in the proceedings, and it is set ex parte, when he was residing elsewhere. Where, however, the record discloses that the concerned party was very much at the station mentioned in the proceedings, hardly any occasion arises for application of those principles.
9. In the instant case, the petitioner strongly pleaded that he has shifted his residence from Nizamabad to Vijayawada. The time of his alleged shifting to Vijayawada was not mentioned. It is not in dispute that almost at the same point of time, as the suit was filed, he instituted the IP, in the Court at Nizamabad. He furnished his address in the IP as resident of ‘Ekashila Apartments, Nizamabad”. It is to that very apartment, that the notice in the suit was sent. Obviously, to overcome this situation, the petitioner pleaded that he was residing at Vijayawada and was meeting his Advocate at Nizamabad, during nights. The trial Court had analysed this version, and rightly disbelieved the petitioner. This Court is not inclined to take any different view.
10. Learned Counsel for the petitioner submits that the confirmation of the sale of the mortgaged property, is yet to take place, and his client may be extended the facility of paying the decretal amount, in instalments. This request is strongly opposed by the learned Counsel for the respondent.
11. Having regard to the facts and circumstances of the case, the Civil Revision Petition is disposed of, directing that:
(a) The petitioner shall be entitled to deposit l/4th of the decretal amount, within one month, and the balance in six instalments, payable on or before 5th of every month, commencing from August, 2007.
(b) In case, the petitioner commits default in payment of l/4th of the amount, or two monthly instalments consecutively, it shall be open to the Court to confirm the sale.
(c) There shall be no order as to costs.