AP High Court Declines To Set Aside Preliminary Decree In Partition Suit

Posted On - 8 September, 2025 • By - King Stubb & Kasiva

SUMMARY:

[1]The Andhra Pradesh High Court dismissed an appeal filed by subsequent purchasers (defendants 7 and 8) in a partition suit, refusing to condone a 259-day delay. The Court held that the appellants were negligent in pursuing their remedies and failed to establish sufficient cause for condonation under Section 5 of the Limitation Act.

FACTS:

  • Plaintiff filed O.S. No. 147/2014 seeking partition of ancestral properties.
  • Defendants 1–8 entered appearance but failed to file written statements, leading to an ex parte order in November 2014.
  • A preliminary decree was passed on 25 February 2015.
  • Defendants 7 and 8 (subsequent purchasers) moved under Order IX Rule 13 CPC to set aside the decree, but the trial court rejected their application in July 2016.
  • Their appeal before the District Court was returned on grounds of pecuniary jurisdiction; later, the appeal was filed before the High Court with a delay of 259 days, explained as due to misplacement of case papers by counsel’s clerk.

ISSUES:

  • Whether the appellants had shown “sufficient cause” under Section 5 of the Limitation Act for condonation of delay.
  • Whether the ex parte decree in the partition suit could be set aside under Order IX Rule 13 CPC.

JUDGEMENT:

  1. The Court held that the appellants were negligent in not filing written statements despite repeated adjournments.
  2. They failed to act diligently even after being set ex parte and allowed the preliminary decree to be passed.
  3. The reasons cited for delay — misplacement of papers, change of clerk, and alleged settlement talks — lacked bona fides and appeared to be a cover-up.
  4. The Court reiterated that while Section 5 Limitation Act must be construed liberally to advance substantial justice, negligence and lack of diligence cannot be excused.
  5. Consequently, I.A. No. 1 of 2017 seeking condonation of delay and the connected appeal were dismissed.

ANALYSIS:

This decision underscores that litigants must act diligently and cannot rely on excuses such as clerical lapses or alleged settlement talks to justify prolonged inaction. The judgment reiterates the settled principle that “sufficient cause” under Section 5 of the Limitation Act requires bona fide diligence, and condonation of delay cannot be granted where negligence or lack of bona fides is evident.

[1] Mallineni Koataiah & Anr. v. Kandikatla Seetha Maha Lakshmi

CMA No. 839 of 2017

Judgment Dated: August 12, 2025

BEFORE THE HON’BLE HIGH COURT OF ANDHRA PRADESH