THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO. 509 OF 2011 JUDGMENT: This Civil Miscellaneous Appeal is preferred aggrieved by the order dated 22-03-2011 in I.A.No.569 of 2010 in O.S.No.436 of 2009 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad, whereunder and whereby the application filed under Order IX Rule 13 CPC to set aside the ex parte decree, dated 31-10-2009 was dismissed. 2. Heard both the counsel. 3. It is stated in the affidavit filed in support of the petition that summons has not been served on the petitioner. But, the trial Court came to the conclusion that summons in Interlocutory Application was served and therefore, it is a service in the suit also. The said ex parte decree under challenge does not indicate whether the summons had been issued to the petitioner-defendant and whether the petitioner received summons in the suit or not. Therefore, if the petitioner-defendant receives summons and fails to attend the Court, then only question of passing ex parte decree arises. Hence, the impugned order is liable to be set aside. 4. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned order. The matter is remanded to the trial Court with a direction to look into the records and arrive at a conclusion as to whether summons had been issued or not and whether there is a proper service or not and decide the issue in accordance with law after giving opportunity to both parties. It is made clear that in case any Execution Petition is filed, the petitioner-defendant is at liberty to file stay petition in the trial Court. No costs. _______________ K.C. BHANU, J DATED:12-09-2011 Note: Send the record to the trial Court. Hsd