IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.1084 of 2011 Dated:19-10-2011 Between: Dereddy Narasinga Rao and others. ….Appellants. And Adduri Kondala Rao. ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.1084 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed in I.A.No.147 of 2009 in O.S.No.156 of 2008 by the I Additional District Judge, Visakhapatnam on 17.08.2011. The appellants herein are the petitioners in the above said petition and the respondent herein is the respondent therein. The appellants herein have filed the above said petition under Order 9 Rule 13 CPC for setting aside the exparte decree dated 23.07.2008 passed in O.S.No.156 of 2008. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioners, they received summons on 31.10.2008 in E.P.No.8 of 2008 in O.S.No.156 of 2008 and only after receiving the summons they approached their advocate and gathered information from the Court diary that the suit filed in the vacation Court on 06.05.2008 was posted to 09.07.2008 for service of summons. The plaintiff has stage managed the things and got the endorsement of refusal on the suit summons as well as on the postal cover by not giving the addresses correctly and obtained exparte decree. They have no knowledge about the filing of the suit as they did not receive the summons and they came to know about the said fact only when they received summons in E.P.No.8 of 2008. Therefore, they prayed for setting aside the exparte decree passed on 23.07.2008. The respondent has opposed the application by filing a counter denying the contentions of the petitioners. According to them, the petitioners have refused to receive the summons sent through Court or through registered post and the petitioners have not appeared in the suit, which was posted on 09.07.2008 and again posted to 14.07.2008, as such the exparte decree was passed after recording the evidence of the plaintiff. The plaintiff has given correct addresses of the defendants in the suit and the same addresses were given in the E.P. and summons in the E.P. were received by the petitioners, but whereas they refused to receive the summons in the suit and in spite of having knowledge of the filing of the suit, they did not attend the Court, as such they are not entitled for setting aside the exparte decree. He further pleaded that the petition is barred by limitation. During the course of enquiry before the lower Court, all the petitioners have examined as P.Ws.1 to 5 and got marked Exs.A.1 to A.6. No oral and documentary evidence was adduced on behalf of the respondent. Taking into consideration of the said oral and documentary evidence, the lower Court has dismissed the application holding that the petitioners have got knowledge of the filing of the suit as they refused to receive the summons in the suit and the petition is barred by limitation. Aggrieved by the said Order, the present appeal is filed by the petitioners therein. The main contention of the appellants/petitioners’ counsel is that the respondent/plaintiff has managed to get the endorsement on the summons in the suit as they refused to receive the same and in fact the summons were not served on them. They came to know about the filing of the suit only when they received the notices in the E.P.No.8 of 2008 for execution of the said decree. The lower Court by taking into consideration of the evidence adduced on behalf of the petitioners noted that P.W.1 admitted in his cross-examination that the addresses shown on the notices received by them in E.P. proceedings is the same in the summons filed in the suit in O.S.No.156 of 2008. Therefore, the addresses mentioned in the suit and the execution proceedings are one and the same. The lower Court also observed that Ex.A.4, which is the returned summons sent through Court, also shows that the endorsement on it as defendant Nos.1 and 2 refused to take summons stating that they are no way concerned with the said case and thereby the same was returned to the Court. Admittedly, the summons sent through Court and through registered post in the suit were returned to Court with an endorsement as refused by the defendants. In view of the fact that the addresses mentioned in the summons in the suit and notices in the E.P. are one and the same and when the notices in the E.P. were received by the petitioners, it cannot be said that the endorsement on the suit summons was stage managed by the plaintiff in the suit. Except making allegations against the plaintiff that he stage managed the things and got endorsement of refusal on both the summons sent through Court and through registered post, they could not produce any evidence in that regard. When it is prima-facie established by the endorsement made on the summons sent through Court and through registered post that they were refused by the appellants/petitioners herein, it cannot be said that the summons were not served on them. Therefore, as rightly held by the lower Court the contention of the petitioners that the suit summons were not served on them cannot be accepted. With regard to limitation, the lower Court has rightly observed that if the summons were not served on the petitioners, the date of knowledge of passing of the decree can be taken as starting point for limitation. In the present case, as the summons were refused by the petitioners, they ought to have been filed an application within one month from the date of passing of the decree. As the decree was passed on 23.07.2008 and the present application was filed on 11.11.2008, the petition is barred by limitation. Therefore, in view of the above said observations, the lower Court has rightly dismissed the application of the petitioners for setting aside the exparte decree passed against them in the suit and the said Order does not warrant any interference by this Court in the appeal. In the result, the Civil Miscellaneous Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:19-10 -2011 Ksp