JUDGMENT
L. Narasimha Reddy, J.
1. These two CRPs., are connected with each other. Hence, they are disposed of through a common order.
2. The petitioner filed O.S. No. 53 of 2000 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad, against the respondent for recovery of a sum of about Rs. 6,00,000/-. The respondent was served with summons on 1-3-2000. Thereafter, he was set ex parte and an ex parte decree was passed on 03-11-2000. The petitioner filed E.P. No. 148 of 2002 in the Court of I Additional Senior Civil Judge, Vijayawada. When the notice was served upon the respondent, in the E.P., he filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree. Since there was delay of 708 days in filing the application, he filed I.A. No. 3395 of 2002, under Section 5 of the Limitation Act. The trial Court condoned the delay and allowed I.A.No. 3395 of 2002, through its order, dated 13-6-2003. Consequently, the application filed under Order 9 Rule 13 CPC, was numbered as I.A. No. 1706 of 2003. It was also allowed through order, dated 28-1-2004. C.R.P. No. 1021 of 2004 is filed against the order in I.A. No. 3395 of 2002, and C.R.P. No. 1583 of 2004 is filed against the order in I.A. No. 1706 of 2003.
3. Sri P. Gopal Das, learned Counsel for the petitioner submits that the respondent was indifferent, at every stage, in repayment of the amount, and in responding to the demands made by the petitioner. He submits that the respondent did not reply even after receiving the notice. He contends that though summons in the suit were served upon him, on 1-3-2000, he has not chosen to file written statement or to appear before the Court, and that the trial Court was left with no alternative, except to pass an ex parte decree. He submits that there was hardly any explanation, worth its name, in the affidavit filed in support of the I.A. filed under Section 5 of the Limitation Act.
4. Sri P. Venkat Rao, learned Counsel for the respondent, on the other hand, submits that the respondent is an old man residing at Vijayawada and as soon as he received summons in the suit, he engaged an advocate at Hyderabad. He contends that the efforts of the respondent to communicate with his advocate were not fruitful, and on account of his old age, he could not come over to Hyderabad to verify the matters personally. Learned Counsel submits that as soon as the respondent received notice in the E.P., he took immediate steps to get the ex parte decree set aside.
5. The suit filed by the petitioner against the respondent for recovery of a sum of about Rs. 6,00,000/-, was decreed ex parte, on 3-11-2000. It is not in dispute that the respondent was served with notice. The trial Court gave ample opportunity for the respondent to file written statement and when there was no response, it passed an ex parte decree. It was only after the respondent received notice in the E.P., that he has taken steps to file an application under Order 9 Rule 13 CPC, as well as the one under Section 5 of the Limitation Act. The respondent stated in his affidavit filed in support of the I.A., that soon after he received the summons, he engaged an advocate, by name, M.V.S. Prasad to file vakalath on his behalf. He also contends that due to his old age and ailments like epilepsy, back pain and gastric trouble, he was unable to meet his advocate personally and the efforts to correspond with him were not fruitful. The petitioner denied this allegation in the counter-affidavit.
6. Learned Counsel for the petitioner relied upon several judgments rendered by this Court and the Supreme Court in support of his contention that each day’s delay must be explained and when valuable rights have accrued to the petitioner in the form of an ex parte decree, the same cannot be taken away on the basis of vague and unverified allegations on the part of the respondent.
7. It is true that the parties to any proceedings are expected to be vigilant, and any lapse on their part would result in an order detrimental to their interest. However, in the matter of condonation of delay, hardly there does not exist any hard and fast rule. In a given case, an application to condone the delay of few days can be rejected if it is shown that there was gross indifference or deliberate lapse on the part of such party, and that the delay of even few years can be condoned if reasons are assigned to the satisfaction of the Court. A decent balance always needs to be maintained between the two situations, viz., ensuring as far as possible, that the adjudication takes place on merits and not disturbing the rights, which accrue to one party on account of the indifference of the other.
8. Few important facts that prompted the trial Court to show indulgence to the respondent are that (a) the suit is filed at Hyderabad, whereas the respondent resides at Vijayawada, at a distance of about 300 kilometers, (b) the respondent is aged about 70 years and is suffering from various ailments and (c) he took steps to engage an advocate as soon as he received summons in the suit and moved in the matter, the moment he received a notice in the E.P.
9. The cumulative effect of all these facts is that the respondent cannot be said to be not diligent in pursuing the proceedings. Therefore, no exception can be taken to the order passed by the trail Court, in condoning the delay in presenting the application under Order 9 Rule 13 CPC. Setting aside an ex parte decree is treated as almost as a matter of course, once the delay is condoned.
10. Learned Counsel for the petitioner submits that taking advantage of the fact that the decree against him is set aside, the respondent is trying to take steps to alienate the properties to frustrate the ultimate decree that may be passed. He also pressed for a direction to the respondent to deposit the entire decretal amount or at least part of it.
11. Time and again, this Court held that once an ex parte decree is set aside, any direction to the defendant to deposit the decretal amount or part of it, would amount to a contradiction in terms. Be that as it may, the rights of the petitioner also need to be protected. It is stated that certain items of properties were attached by the executing Court in E.P. No. 148 of 2002. The interest of the petitioner can be protected, if the respondent be restrained from alienating or otherwise encumbering the said properties.
12. The trial Court awarded costs of Rs. 500/- each, while allowing the I.As. This Court is of the view that having regard to the extent of delay, the costs may be enhanced to Rs. 2,500/- each.
13. Hence, these CRPs are dismissed, however, with a direction that the respondent shall not alienate or otherwise encumber the items of property, which were attached in EP No. 148 of 2002 in the Court of I Additional Senior Civil Judge, Vijayawada, till disposal of the suit.
14. The respondent shall deposit the balance of costs of Rs. 4,000/- (2000+2000), within two weeks from today. The Court below shall proceed with the trial of the matter and dispose of the same by the end of September, 2004.