IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 19341 of 2005(C) -------------------------- CMA.20/2004 of SUB COURT, MANJERI OS.17/1998 of MUNSIFF COURT, TIRUR .................... PETITIONER: ------------ PARAMMAL IBRAHIM, BY POWER OF ATTORNEY HOLDER HAMZA PARAMMAL, KALPAKANCHERY, PARAVANNUR, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MOHAMMED FAISAL NAHA RESPONDENTS: ------------- KARUNGADAN YANU HAMZA, KARUNGADAN HOUSE, KALPAKANCHERY AMSOM, PARAVANNUR DESOM, P.O. KALPAKANCHERY, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.19341 of 2005 EXT.P1 TRUE COPY OF ORDER DATED 23.9.2003 IN I.A.NO.1282/2001 AND 1283/2001 IN O.W.NO.17/98 OF THE MUNSIFF'S COURT, TIRUR. EXT.P2 TRUE COPY OF THE JUDGMENT OF THE SUB COURT, TIRUR IN C.M.A.NO.20/2004 DATED 4.2.2005. //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.19341 of 2005 ------------------------------- Dated this the 22nd July, 2008. J U D G M E N T Petitioner is the defendant and respondent the plaintiff in O.S.No.17 of 1998, on the file of Munsiff Court, Tirur. The suit was decreed ex-parte on 19.2.1998. Petitioner filed I.A.No.1283 of 2001 through his power of attorney holder to set aside the ex parte decree and I.A.No.1283 of 2001 to condone the delay in filing the petition to set aside ex parte decree in time. Under Ext.P1 order, both the petitions were dismissed. Petitioner challenged the order before Sub Court, Tirur, in C.M.A.No.20 of 2004. Learned Sub Judge under Ext.P2 order dismissed the appeal confirming Ext.P1 order. This petition is filed under Article 227 of the Constitution of India challenging Ext.P2 order. 2. The learned counsel appearing for the petitioner and learned counsel appearing for respondent were heard. 3. The argument of the learned counsel appearing for the petitioner is that petitioner did not receive any summons and he W.P.(C) No.19341/2005 2 was not aware of the suit or the decree and was working in Dubai for the two years prior to the date of filing of the petition, and immediately on coming to know about the decree, he filed the petitions, and, therefore, ex parte decree should have been set aside, after condoning the delay. The learned counsel argued that in the interest of justice, an opportunity is to be granted to the petitioner to have a decision on merits. 4. The learned counsel appearing for the respondent pointed out that subsequent to the date of the decree, an execution petition was filed and in the execution petition, respondent proposed to appear through Advocate Moideen Kutty on 20.1.2000, and, therefore, even if petitioner was not aware of the decree earlier, at least on 20.1.2000, he is presumed to have knowledge about the decree and petitions were filed only in 2001, and in such circumstances, there is no reason to interfere with Exts.P1 and P2 orders. 5. Courts below on verifying the records found that summons was served on the petitioner on 19.1.1998 personally. Though it was contended that summons was not served on the W.P.(C) No.19341/2005 3 petitioner, petitioner did not examine the process server to show that it was not personally served on him. Even though it was contended that petitioner was in Dubai, no evidence was produced to show that on 19.1.1998, he was not in India or was at Dubai. In such circumstances, courts below were justified in holding that summons was served on petitioner personally. If that be so, petitioner cannot be allowed to contend that he was not aware of the suit till he filed the petition to set aside ex parte decree. I do not find any illegality or irregularity in Exts.P1 and P2 orders warranting interference. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.