IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 CRP.No. 300 of 2010() --------------------- CMA.87/2009 of III ADDL. DISTRICT COURT, KOLLAM OS.149/1999 of PRL.MUNSIFF COURT., KOLLAM .................... REVN. PETITIONER/ RESPONDENT/PLAINTIFF: ----------------------------------------- SBHADIKAM, AGED 61 YEARS, S/O.JANARDHANAN, BRAHMVILASOM, ASHRAMOM, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENTS/ APPELLANT/DEFENDANTS ----------------------------------- 1. MAYA VINOD, AGED 45 YEARS, W/O.VINOD, PATTATHUVILA VEEDU, VADAKKEVILA VILLAGE, KADAPPAKKADA, KOLLAM. 2. G.VINOD, AGED 52 YEARS, S/O.GANGADHARAN, PATTATHUVILA VEEDU, VADAKKEVILA VILLAGE, KADAPPAKKADA, KOLLAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.300 of 2010 --------------------------------------- Dated this 11th day of June, 2010 ORDER Petitioner obtained an ex parte decree against the respondents long back on 24-09-1999 and after about 10 years on 30-07-2009 respondents sought to set aside the ex parte decree by condoning the delay. Learned Munsiff was not impressed by the cause stated by respondents for delay and consequently dismissed the application. Respondents took up the matter in appeal. Appellate court was not impressed by the reasoning adopted by learned Munsiff to disallow the request of respondents to re-open the case and gave them an opportunity to contest the case. Appellate court allowed the C.M.Appeal and set aside the ex parte decree. That judgment is under challenge at the instance of petitioner in this revision petition. Learned counsel for petitioner has strenuously contended that appellate court was not justified in its finding that respondents had sufficient cause for not filing application on time. According to the learned counsel course of conduct on the part of respondents in the execution of the ex parte decree indicated lack of bonafides on their part. 2. Some facts are necessary to appreciate the contention C.R.P.No.300 of 2010 : 2 : raised by learned counsel and to decide whether appellate court was justified in reopening the case. Petitioner filed the suit for recovery of Rs.87,769.31/- based on certain demand promissory notes allegedly executed by the respondents. The suit was filed on 08-02-1999. Learned Munsiff ordered summons to the respondents. The process server was entrusted to serve summons on the respondents in their address given in the plaint. On 13-02- 1999, ie, just 5 days after institution of the suit process server attempted to serve summons and found the house of respondents locked and unable to find the respondents for personal service, he served the summons by affixture the same day as provided under Order 5 Rule 17 of the Code of Civil Procedure (for short, “the Code”). Following that an ex parte decree was passed on 24-09- 1999. Obviously learned Munsiff accepted the report of Amin as to the sufficiency of service of summons on the respondents. Petitioner being armed with a decree passed on 24-09-1999 in his favour chose to keep quite for time and filed execution petition (E.P.No.80 of 2008) in the year 2008 ie, after about 9 years of obtaining the decree. Notice under Order 21 Rule 22 of the Code was served on respondents. They entered appearance through counsel on 11-07-2008 and execution petition was posted on 13-07- 2008. Executing court passed an order accordingly and issued C.R.P.No.300 of 2010 : 3 : notice to respondent No.2 under Order 21 Rule 37 of the Code. E.P was posted for objection of respondent No.2 and in the meantime there was a request for time for payment of the amount and the case was posted on 23-10-2008. It is while so on 30-07-2009 respondents filed I.A.Nos.3294 of 2009 and 3295 of 2009 to set aside the ex parte decree and to condone the delay. That application was opposed by petitioner contending that there was due service of summons on the respondents, at any rate they had information about pendancy of the suit. Even if it is accepted that there was no service of summons application to set aside the ex parte decree is hopelessly barred by limitation as the application is not preferred immediately after service of notice under Order 21 Rule 22 of the Code. Learned counsel contended that finding of the appellate court is not correct. 3. Certain things loom large on the case pleaded by petitioner. As I stated there was no attempt on the part of process server to serve notice under Order 5 Rule 15 of the Code on finding that respondents were not available at the address given in the plaint and the house was seen locked on 13-02-1999 and on the same day he served summons by affixture without even attempting to serve summons under Order 5 Rule 15 of the Code. It is seen that learned Munsiff without giving proper application of mind on C.R.P.No.300 of 2010 : 4 : the report of Amin as to whether there was proper service of summons on the respondents chose to pass an ex parte decree on 24-09-1999. 4. No doubt respondents got information about the ex parte decree when they received notice under Order 21 Rule 22 of the Code on 07-06-2008 but application to set aside the ex parte decree accompanied by application to condone the delay was filed only on 30-07-2009. Certainly respondents have an obligation to explain the delay atleast from 07-06-2008 onwards. I have gone through the copy of affidavit of respondent No.1 in support of the application to condone the delay and find that in paragraphs 11 to 14 it is stated under what circumstances he did not immediately file application to set aside the ex parte decree. He states about his close association with petitioner and how they were working in partnership for quite long time. He stated that he did not want to mar the relationship he had with petitioner and was making every attempt to reach a settlement with petitioner perusing him to reach a settlement. It is stated that mediators had interfered in the matter (obviously after respondents were served notice under Order 21 Rule 22 of the Code and they made appearance in the executing court on 07-06-2008) but mediation did not succeed. It is stated that respondents were under the impression that due to the C.R.P.No.300 of 2010 : 5 : intervention of mediators they will be able to have a reproachment with petitioner and hence avoid the situation of seeking to contest the case. According to respondent No.2, some of the partners of erstwhile firm had even given verbal replies that he should not act immediately to re-open the ex parte decree. One thing is certain that there was no service of summons on the respondents and the ex parte decree is based on the report of process server which should not have been accepted. I am also bear in mind that petitioner who got ex parte decree in his favour for recovery of not a small amount waited for about 9 years to launch execution. In these circumstances, I do not find reason to interfere with the finding of learned Additional District Judge that there was sufficient cause for respondents not filing applications on time, and exercising the discretion in favour of respondents. The revisional court is not sitting in appeal over the decision of learned Additional District Judge to find whether on the facts and circumstances judgment of the learned District Judge is correct. The question which the revisional court has to consider is whether there is illegality or perversity in the finding of the court below. I find none. The difficulty that may have been caused to the petitioner by reopening the case is sought to be lessened by the learned Additional District Judge by directing respondents to pay a C.R.P.No.300 of 2010 : 6 : substantial amount by way of cost. Having regard to the circumstances I do not find reason to interfere with the judgment of learned Additional District Judge. Resultantly this revision petition fails and it is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-