PAZHEKOTTAL NABEESSU Vs. PAZHEKOTTAL KUNHAMINA

JUDGEMENT

(1.) This Civil Miscellaneous Appeal arises out of the order of Sub Judge, Tellicherry, refusing to set aside an ex parte decree. The only ground on which the application to set aside the ex parte decree was dismissed was that I.A. No. 391 of 1975 filed to excuse delay in filing the application bad been dismissed. The revision petition is preferred against the order on the I.A.; and Civil Miscellaneous Appeal, against the order rejecting the application to set aside the ex parte decree. The Civil Revision Petition has not been admitted, but was directed to be posted along with the Civil Miscellaneous Appeal. We think it unnecessary to deal separately with the CRP., as the grounds which led to the rejection of the application to excuse delay can well be heard as part of the Civil Miscellaneous Appeal against the order refusing to set aside the ex parte decree. We accordingly dismiss the Civil Revision Petition.

(2.) Dealing therefore with the Civil Miscellaneous Appeal, the question for consideration is whether the application to excuse delay was filed out of time and whether the learned Judge was right in refusing to excuse delay in filing the application. The time limit is thirty days from the date of the decree; or, if summons was not duly served, of the date of knowledge of the decree. The learned Judge noticed that the suit for partition was filed on 10-8-1974 and the first bearing date bad been fixed for 12-9-1974. Summons taken to the appellant was returned on 23-8-1974, with the endorsement that the appellant refused the summons. An ex parte decree followed on 16-9-1974. The application to excuse delay was filed on 12-2-1975 on the ground that the appellant knew of the decree only on 17-1-1975 when she was served with notice of the final decree application. The learned Judge was of the view that the summons had been duly served, that some of the defendants in the suit who had been residing with the appellant in the same house had been served with notices of the suit, and that there was reason to infer that the appellant had knowledge of the proceedings and had refused to accept summons as a result of some collusion on her part with the others who had also chosen to remain ex parte, so that all of them could get the benefit of a setting aside of the ex parte decree at the instance of the appellant. In the circumstances, the learned Judge was of the view that the delay was wilful and that there were no grounds to allow the application to excuse delay. It was therefore dismissed.

(3.) We regret to observe that the learned Judge has not kept in mind the relevant provision of the Civil Procedure Code in regard to the setting aside of an ex parte decree; nor borne in mind the two aspects of the said provision. Under O.9 R.13 CPC., the question for consideration would be whether summons was not duly served; or, whether the applicant was prevented by sufficient cause from appearing when the suit was called on for hearing. Either of these grounds would suffice. We have noticed the two termini from which time for filing the application has to be reckoned. Addressing ourselves first to the question, whether the summons bad been duly served, we see that the summons was returned with the endorsement that the appellant bad refused to accept the summons. Under the Civil Procedure Code in force at the relevant time, which bad application to the case, this cannot constitute sufficient service vide O.5 R.19 of the Civil Procedure Code in the absence of a declaration of sufficiency of service. If authority is needed for the proposition, it is enough to notice the direct ruling of a Division Bench of this Court in Daveed Asservadam v. Krishna Pillai Govinda Pillai ( 1970 KLT 907 ). It is regrettable that the learned Judge did not address herself either to the relevant provisions of the Civil Procedure Code or to the judicial decisions which are innumerable on this aspect of the matter.