HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL REVISION PETITION No.2587 OF 2011 ORDER: The revision is filed against the order in I.A.No.854 of 2010 in O.S.No.265 of 2008 on the file of the Principal Senior Civil Judge, Nellore, refusing to condone the delay of 173 days in filing the application to set aside the ex parte decree passed on 11.03.2010. The petitioner herein is said to be husband of the respondent and the respondent filed the above suit for maintenance of Rs.13,000/- per month and as no notices were said to have been served though they were taken to the given address, paper publication was given and petitioner herein was set ex parte and the decree for maintenance of Rs.13,000/- per month was said to have been passed on 11.03.2010. 2. According to the claim of the petitioner, he has no knowledge of the proceedings and no notice was served on him and he came to know only when he attended the M.C. proceedings. The learned Principal Senior Civil Judge considered that there are no justifiable reasons and the petition is not filed within 30 days from the knowledge of the proceedings and the delay is not properly explained. The reliance was also placed on the judgment of the Hon’ble Supreme Court, where the liberal approach in condoning the delay cannot be taken into consideration in case where it was not properly explained and dismissed the application. Evidently, no notice was served on the appellant herein. The order of the lower Court does not show that while ordering the substitute service the Court was satisfied about the necessity of going for substitute service and thereby as contemplated under Order V Rule 20 of the Civil Procedure Code, the Court has exercised the power. When such application of the mind is not there by the Court, it is not in dispute that notice by substitute service is no notice to the party under general circumstances. Even otherwise, there is no need for the appellant to remain ex parte or to avoid the service of notice when he was contesting the M.C. proceedings and also claims to have instituted a petition for divorce on the file of the Family Court at Tirupathi, which was also said to have been transferred to Nellore. Therefore, in such circumstances, no malafides in the conduct of the revision petitioner can be inferred in refusing to receive the notice or avoiding to receive the notice. Even otherwise, the claim of the plaintiff for maintenance is said to be for a sum of Rs.13,000/- in spite of the fact that already a claim for maintenance was granted in M.C., to a tune of Rs.3,000/-. Except the plaintiff herself and there are no dependants on her. Therefore, the decree passed by the lower Court granting outright claim of the plaintiff at the rate of Rs.13,000/- per month as maintenance as against the retired employee, which is also appears to be onerous and therefore, it is a case, where an opportunity has to be given to the defendant and the law is well settled that for no party shall be denied to contest the case on merits when it involves substantial rights. The delay of 173 days, which was claimed by the revision petitioner or 233 days as contended by the learned counsel for the respondent cannot be said to be enormous delay. 3. Therefore, taking a liberal approach and particularly, liability involved in the claim being onerous, the delay can be condoned and therefore, I direct the application shall be allowed on payment of costs of Rs.5,000/- to the other side in the lower court and on such amount being deposited in the Court within four weeks, the lower Court shall pass necessary orders in the application to set aside the ex parte decree keeping in view the observations made by this Court in this order. The application for setting aside the ex parte decree shall also be decided within three months thereafter. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs. _________________________ N.R.L. NAGESWARA RAO, J Date:07.09.2011 INL