C K LOKESH Vs. P E PANDURANGA NAIDU

JUDGEMENT

(1.) Leave granted.

(2.) We have heard learned counsel on both sides.

(3.) The appellant is defendant in OS No. 288 of 1984 on the file of the District Munsif court, Cheyyar. The appellant was set ex parte on 30/3/1985. The respondent filed a suit for declaration of his title and for injunction restraining the appellant from interfering with the suit property, i. e. , the land to the extent of 2 acres and 30 cents. It is admitted that personal service was not effected on the appellant. It would appear that the court has directed to effect the substitute service by publication in the newspaper but that also did not reach the appellant. On becoming aware of the ex parte decree and order in 1990, the appellant filed an application under Order 9, Rule 13 Civil Procedure Code within 30 days from the date of his knowledge to set aside the decree and order. He filed an application under Section 5 of the Limitation Act to condone the delay. The District Judge condoned the delay holding that: "i uphold the submissions of the petitioner that the petitioner had no knowledge of the case nor was he aware of the pending case and, therefore, he is entitled to prefer this petition within 30 days from the date of knowledge. Hence the petition is allowed. "