MOLLYKUTTY @ MOLLYKUTTY VALLANT Vs. NICEY JACOB

JUDGEMENT

(1.) This appeal has been filed challenging the common order, whereby the Principal Sub court, Kottayam dismissed IA Nos.641 and 642/2015 in OS 218/2009. O.S.No.218/2009 was a suit for partition filed by respondents 1 to 5 herein against the appellant and others. IA 641/2015 is an application filed under Order 9 Rule 13 of the CPC to set aside the ex-parte decree and judgment passed against the appellant and IA 642/2015 was filed to condone the delay of 51 days in filing the application to set aside the ex-parte decree and judgment.

(2.) The appellant is an Indian citizen, permanently residing and working in USA. She is the first defendant in O.S.No.218/2009 of the Court of Principal Sub Judge, Kottayam. The said suit was filed by the respondents 1 to 5, as the plaintiffs, seeking a decree for partition of the plaint schedule property. The appellant was set ex parte and an ex parte decree granting partition of the plaint schedule property was passed. According to the appellant, the plaint schedule property is not partible, as she has absolute title and possession over the plaint schedule property in exclusion of the plaintiffs and other defendants. But she has not received the summons in the said suit, as the same was not duly served to her in accordance with the Rules. The procedure adopted by the courts below, to declare that the summons had been duly served on the appellant, is illegal and perverse. The ex parte decree was passed on 26.09.2011; but she came to know about passing of the ex parte decree against her only on 19.01.2015, when the ameen went to the plaint schedule property in execution of the final decree passed in the suit. Since she was residing in USA, there occurred some delay in obtaining a power of attorney of the appellant.

(3.) There is a delay of 51 days in filing the application to set aside the ex parte decree. There is no negligence or laches in causing the said delay on her part. Since the summons was not duly served to her in accordance with the Rules, the ex parte decree is liable to be set aside after condoning the delay.