KARUMILLI BHARATHI Vs. PRICHIKALA VENKATACHALAM

JUDGEMENT

(1.) CRP No. 3871 of 1998 was filed by the defendant challenging the order dated 2-7-1998 passed by the senior Civil Judge, Tadipalligudem in IA No.486 of 1998 in OS No. 73 of 1997. IA No.476 of 1998 was filed under Section 5 of the Limitation Act to condone the delay of 176/ 197 days in filing the petition to set aside the decree passed in a summary suit under Order 37 of CPC. The trial Court dismissed it. The Civil Revision Petition filed by the defendant was allowed by me condoning the delay on a costs of Rs.1,000.00 vide my judgment dated 19-11-1998. The respondent-plaintiff has filed the present review petition seeking review of the order dated 19-11-1998 passed in CRP No.3875/1998.

(2.) Learned Counsel appearing for the petitioner strenuously contended that this Court has condoned the delay but without repelling the reasons given by the Court below in not accepting the cause sought to be made out by the defendant. Therefore, he submitted that there is an error apparent on the face of the record inasmuch as this Court has not given the reasons as to how the defendant has made out sufficient cause for condonation of delay in filing the petition to set aside the ex parte decree. He relied upon some of the judgments of the Supreme Court as to the meaning of sufficient cause etc. He further submitted that under Order 37 Rule 4 CPC, what is required to be explained by the defendant for selling aside the ex parte decree is 'special circumstance' but not 'sufficient cause', and there is a distinction between these two clauses. But the lower Court and also this Court proceeded on the basis that the defendant has made out sufficient cause. He further submitted that by applying the principle of 'sufficient cause' instead of applying the principle of 'special circumstance', the Court passed the order under review and as such, an error has crept in and this is an error apparent on the face of the record. Therefore, the order of this Court requires to be reviewed.

(3.) On the other hand, the learned Counsel appearing for the respondent-defendant contended that this is not a fit case for review since this Court has condoned the delay of imposing costs of Rs. 1,000.00 on the ground that the petitioner has made out sufficient cause. He further submitted that for an export decree passed in summary proceedings under Order 37, Rule 4 CPC, the limitation that applies is one provided under Article 137 of the Limitation Act and such limitation is 3 years and if the three years as is taken into account, the present application filed by the defendant to set aside the ex parte decree was within the time. Therefore, neither Article 123 of the Limitation Act, nor Order 9 Rule 13 of CPC applies to the case. Hence, the period of 30 days limitation is not applicable. He relied upon some judgments. He further submitted that at any rate there is no error apparent on the face of the record and assuming that there is illegality in the order, that could not be a ground for review. The petitioner and respondents cited number of judgments and I will consider them during the course of this order with reference to the relevant point.