IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTYFIFTH DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1886 of 2010 Between: Ayyalapu Butchi Reddy .. Petitioner AND State Bank of India, represented by its Chief Manager, Nalgonda .. Respondents ORDER: The Civil Revision Petition is directed against the order dated 27-01-2010 in I.A.No.514 of 2009 in O.S.No.128 of 2004 on the file of the Senior Civil Judge’s Court, Nalgonda. The defendant approached the trial/executing Court with the interlocutory application for condonation of delay of 1502 days from 03-03-2005 to 14-04-2009 in filing the petition to set aside the ex parte decree dated 01-02-2005. The defendant pleaded that after service of notice in E.P.No.95 of 2008 in O.S.No.128 of 2004, he came to know about the filing of suit and passing of ex parte decree and the filing of execution petition for recovery of decree debt by attachment and sale of agricultural land of the petitioner- defendant. The defendant claimed that no summons or copies of plaint were ever served on him or affixed at his house and he has no knowledge about the suit. It was on publication of a notice that he was set ex parte on 18-01-2005 and an ex parte decree was passed on 25-01-2005. Therefore, the defendant desired that the delay of 1502 days in not filing the petition to set aside the ex parte decree before 02-03-2005 be condoned. The respondent-bank/plaintiff resisted the request contending that substituted service of summons by way of publication in Eenadu, the largest circulated Telugu daily newspaper of Andhra Pradesh was effected as per the orders of this Court and even after the preliminary decree passed ex pare, the bank waited for more than three years before filing the execution petition. Hence, the bank desired that the delay be not condoned and the petition be dismissed. The Court below passed the impugned order on considering the rival contentions and noting that summons were issued thrice in the suit and affixed to the door of the defendant’s house on all the three occasions. Substituted service was duly effected as permitted by the Court and the notice in the Execution Petition was personally received by the defendant. The Court felt that Eenadu Telugu daily being a largest circulated daily in every nook and corner of Andhra Pradesh, the contention that the respondent was not a subscriber of the said newspaper or that the newspaper was not in circulation in his village cannot be accepted. The Court, therefore, felt that there is no reasonable cause, which can be attributed to explain the inordinate delay of more than 1502 days and hence, the petition was dismissed. The defendant contends in the revision petition that there was no personal service of summons at any point of time and the defendant could not have had any knowledge of ex parte decree before the first week of January, 2009 when the notice in the Execution Petition was served on him. The difference between personal service and substituted service was lost sight of by the trial Court and the delay ought to have been condoned and ex parte decree ought to have been set aside. Heard Smt. K. Rajitha, learned counsel for the revision petitioner and Sri M. Srikanth Reddy, learned counsel representing Sri M. Narender Reddy, learned standing counsel for State Bank of India for the respondent. The point for consideration is whether the delay in filing the petition to set aside the ex parte decree deserves to be condoned? The admitted facts are that after filing of the suit, in spite of repeated attempts to personally serve the summons of the suit on the defendant, they could not be so served and on all the three occasions, the summons were affixed to the door of the defendant. The trial Court itself noted that on all the three occasions, the summons were affixed at his house as the defendant was not available at the house and there is no material on record to presume that on his return, he would have had notice of the attempts for service of summons at his house or the affixture of the summons at his door. The publication of the summons to be served by substituted service in Eenadu Telugu Daily is not in dispute, but the claim that the defendant was not a subscriber to the said newspaper could not be contradicted as a matter fact by any contrary material. Even if the newspaper was in circulation in the village in which the defendant resides, there cannot be any presumption that the defendant would have gained knowledge of the summons published in the newspaper in any manner. When there is no personal service of summons or notices at any point of time before receipt of notice in E.P.No.95 of 2008 in the last week of January, 2009, the attribution of any possible knowledge of the proceedings in the suit to the defendant may not be a matter of presumption or assumption in the absence of any oral or documentary evidence produced by either party in this application. Notwithstanding that the delay occasioned was more than 1500 days, it is well settled that the existence of sufficient cause for the purpose of Section 5 of the Limitation Act always received a liberal consideration with the sole object of advancing substantial justice on merits instead of punishing the parties for any technical lapses. The statement on oath made by the defendant about the circumstances, which led to the delay were not contradicted with any personal knowledge in the counter filed on behalf of the respondent-decree holder and under the circumstances, the delay should have been condoned on appropriate terms. The material papers filed along with the revision petition show that the Execution Petition was filed for recovery of Rs.1,97,408/- and if a substantial portion of the decree debt due under the ex parte decree were to be directed to be paid to the credit of the matter with liberty to the decree holder to withdraw the same without furnishing any security, the same would offset any inconvenience caused to the decree holder by the delay. Smt. K. Rajitha, learned counsel for the revision petitioner submitted that the financial condition of the revision petitioner will enable him to deposit a maximum of 1/4th of the amount due under the ex parte decree as of now. Therefore, the order dated 27-01-2010 in I.A.No.514 of 2009 in O.S.No.128 of 2004 on the file of the Court of Senior Civil Judge, Nalgonda, is set aside and the said I.A.No.514 of 2009 in O.S.No.128 of 2004 will be allowed on deposit of Rs.50,000/- (Rupees fifty thousand only) to the credit of the matter before the trial/executing Court within 10 (ten) days from the date of this order with liberty to the decree holder-respondent to withdraw the same on such deposit without furnishing any security. In default of compliance of the condition, the petition shall stand dismissed. The Civil Revision Petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-03-2011 Ksn