ANANDAKUMAR Vs. K. RAGHAVAN

JUDGEMENT

(1.) The defendant in a suit for money is the appellant. This appeal is filed against the order dated 06.08.2015 in I.A. Nos. 1134 and 1135 of 2013 in O.S. No. 109 of 2007 on the file of the Sub Court, Cherthala, dismissing the applications for condoning delay and setting aside the ex -parte decree. I.A. No. 1134 of 2013 was filed under Order 9 Rule 13 C.P.C. to set aside the ex -parte decree and I.A. No. 1135 of 2013 application was filed under Sec. 5 of the Limitation Act to condone the delay of 2017 days in filing the petition for setting aside the ex -parte decree passed against him.

(2.) The suit was decreed ex -parte on 10.03.2008. The case of the appellant was that, summons was not served on him and he came to know about the suit when he received notice in the execution petition - E.P. 373 of 2012 on 31.10.2012, from the Sub court, Ernakulam, summoning him to appear on 26.11.2012. Therefore the appellant contended that the limitation started to run only with effect from the date of knowledge as to the decree passed against him. The respondent filed a counter affidavit before the court below opposing the petitions. The appellant got himself examined as PW 1. His daughter was examined as PW 2. The respondent did not adduce any evidence.

(3.) The court below, on analysis of evidence on record, found that the process server had served notice on the daughter of the appellant on 4.2.2008 and it was only on being convinced of the service of summons on the appellant that he was set ex -parte on 10.03.2008. The case of the appellant was that, his daughter was not residing along with him at the relevant time, as she was married away and was residing at Kannur with her husband. PW 2, the appellant's daughter above mentioned, when examined, deposed that she got married on 21.01.2008 and thereafter she was residing in her husband's house at Kannur. She denied receipt of any summons on behalf of her father and disowned the signature on the summons. At the same time, she deposed that there was another Sreelekshmi residing near their house and there are certain other houses with the name 'Madathilparambil'. Her testimony, remained consistent without being discredited in the cross -examination by the respondents. The depositions of PW 1 and PW 2 were to the effect that PW 2 was not residing along with PW 1 at the relevant time and that PW 2 did not accept any summons or notice on behalf of her father.