THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.3548 OF 2009 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 3.7.2009 passed by the court of Senior Civil Judge, Kamareddy in I.A.No.106/2009 in O.S.No.7/2005 in dismissing the petition filed by the defendant under Section 5 of the Limitation Act, to condone the delay of 1793 days in filing the petition to set aside the ex parte decree dated 16.6.2005 and permit him to file written statement, the present revision is filed. 3. The learned counsel appearing for the petitioner/defendant submitted that the petitioner was residing separately from his wife and his daughter is suffering from ill-health and because of the disputes between them, his wife did not inform him about the notices received by her and he came to know about the filing of the suit for recovery of the amount, only when his friend informed him about the sale proclamation by way of ‘tom tom’ and that immediately he filed the petition for setting aside the ex parte decree and as there was delay, he filed the present I.A. The learned counsel for the petitioner referring to Order 5 Rule 15 of C.P.C. submitted that service of summons on any adult member of the family, can be taken be valid provided there is report of the process server that there is no likelihood of the person on whom the summons is sought to be served, being found at the residence within a reasonable time. In the present case, as per the record, the initial summons in the suit were not served and it was returned as the party was absent and subsequently it was served on his wife and even while passing of the preliminary and final decrees, it is stated to have been served on the wife of the petitioner. Therefore, as per Order 5, Rule 15 of C.P.C., it cannot be said to be a valid service. In support of his contention, he relied on the judgment of a learned single Judge of the Madhya Pradesh High court in SURESHKUMAR v. GODAVERIBAI[1]. He submitted that copy of the plaint was also not served and unless the plaint copy is served along with the summons, it cannot be said to be due service under Order 5, Rule 2 of C.P. C. In support of his contention, he relied on the judgments of the Madhya Pradesh and Punjab and Haryana High Courts in CHUTBAI v. MADANLAL[2] and BIMLA WATI SHARMA v. STATE BANK OF PATIALA[3]. He contended that when the petitioner could show sufficient cause for condoning of delay, the court below is not justified in refusing to condone the delay. In support of his contention, he relied on the judgment of a learned single Judge of this court reported in GUANAGANTI BALA KRISHNAMMA v. K. AADI SESHAIAH[4]. With these contentions, he sought to set aside the impugned order and condone the delay. 4. On the other hand the learned counsel appearing for the respondent/plaintiff supporting the impugned order submitted that as the defendant failed to show the sufficient cause for condoning the delay, the court below rightly dismissed the petition filed under Section 5 of the Limitation Act and the impugned order does not warrant any interference. 5. In order to appreciate the above contentions raised by both the counsel, it is necessary to note the admitted facts on record. 6. The respondent/plaintiff filed the suit for recovery of money based on simple mortgage transaction took place between him and the petitioner/defendant. Prior to the filing of the suit, the plaintiff got issued legal notice and the same was returned un-served, as the defendant was absent. Subsequently the suit was filed. In the suit the summons were served on the wife of the defendant and as he did not pursue the proceedings, he was set ex parte and ex parte decree was passed and preliminary decree was passed on 16.6.2005 and the plaintiff approached the court for passing of the final decree. At this stage also the notice was served on the wife of the defendant and the final decree was passed. Thereafter, the plaintiff filed E.P.No.2/2007 for execution and in the execution petition also, the notice was served on the wife of the defendant. At the stage of proclamation of sale by way of ‘tom tom’, the defendant filed the petition to set aside the ex parte decree and as there was delay, he filed the present I.A. for codonation of delay. 7. The case of the defendant is that because of the disputes he along with his daughter are residing separately from his wife and his wife did not inform him about the suit summons and that his daughter is suffering from ill- health right from her birth and that she was completely hospitalized on 6.11.1999 and she was admitted in Wockhard Hospital on 20.2.2009 at Hyderabad and that she underwent surgery on 4.5.2009 and discharged on 9.5.2009. In support of this version, the petitioner has not produced any record. Further it is to be noticed that the summons in the suit and thereafter notice in the E.P. were served on the wife of the petitioner at the same address, which is shown in the present I.A. This goes to show that though the petitioner had taken the plea that he is residing separately, he is residing in the same address. Therefore, there are no bona fidies on the part of the petitioner and as he did not show sufficient cause for condoning the delay, the court below rightly dismissed the petition. 8. There is no dispute with regard to the provisions under Order 15 Rule 5 of C.P.C., and the law laid down in the judgments referred to by the petitioner, but in the present case, the petitioner did not produce any evidence in support of his contention that he is residing separately from his wife and moreover, as noted above, even in the present I.A. and in the revision, he has shown the same address where the notices were served on his wife. Therefore, I do not find any merit in the revision and the same is dismissed. No costs. AVS ------------------------------ -- 03—12—2009 [1] AIR 1992 M.P. 205 [2] AIR 1989 MP 330 [3] AIR 1992 P & H 101 [4] 2007(4) ALT 161