THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.1112 of 2009 Dt:10-08-2010 Between : K. Surekha Reddy ..Appellant And V. Chandraiah .. Respondent Counsel for the appellant: Smt. Manjiri S. Ganu Counsel for respondents : Sri V. Ravi Kiran Rao < GIST >HEAD NOTE: ? CASES REFERRED : 2002 (5) ALT 75 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY C.M.A.No.1112 of 2009 ORDER: The respondent filed O.S.No.656 of 2002 against the appellant in the Court of II Additional Senior Civil Judge, Ranga Reddy District, for the relief of specific performance of an agreement of sale. The suit was decreed ex parte, on 17-02-2003. Thereafter, the respondent filed E.P., for execution of the decree. At that stage, the appellant came to know about the ex parte decree and filed I.A.No.1944 of 2008, under Order IX Rule 13 C.P.C. She pleaded that she was not served with the summons in the suit, nor did she engage an advocate, and that the ex parte decree was obtained by the respondent by playing fraud. It was urged that she came to know about the ex parte decree only on 20-09- 2008, and her enquiries revealed that the trial Court proceeded as though vakalat was filed on her behalf. The application was resisted by the respondent. The trial Court dismissed the I.A., through order dated 23-06-2009. The same is challenged in this appeal. Heard the learned counsel for the appellant and learned counsel for the respondent. The appellant filed application under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree dated 17-02-2003, pleading that she was not even served with summons in the suit. The respondent, on the other hand, pleaded that, not only summons were served upon the appellant, but also an advocate was engaged by her. The trial Court dismissed the I.A., on two grounds, viz., a) that no application was filed for condonation of delay, and b) that the record discloses that the appellant engaged an advocate in the suit, and thereafter remained ex parte. So far as the first ground is concerned, it needs to be observed that though the limitation for filing an application under Order IX Rule 13 C.P.C., is 30 days, from the date on which, the ex parte decree was passed, a different approach becomes necessary, in case the defendant, who suffered the ex parte decree, did not have any knowledge of the ex parte decree. In this regard, a distinction needs to be maintained by the defendant, who entered appearance in the suit, but was set ex parte, before the ex parte decree came to be passed, on the one hand; and the one, who was not served with the summons at all, and accordingly was not aware of the ex parte decree. In the first category of cases, the limitation for filing application under Order IX Rule 13 C.P.C., starts from the date of ex parte decree. The reason is that, once the defendant is served with summons, or has entered appearance, he is supposed to be in the knowledge of the development, that takes place in the suit. In the second category of cases, the Court cannot impute knowledge to him, as regards any step, including the passing of ex parte decree. If it is established that a defendant was not served with summons at all, before the ex parte decree was passed, the limitation starts from the date of knowledge of the ex parte decree, and not from the date of the decree. In the instant case, if the appellant proves that she was not served with summons at all, the date of order becomes irrelevant. She would not be under obligation to file an application under Section 5 of the Limitation Act, in case, the I.A., under Order IX Rule 13 is within 30 days from the date of knowledge. As regards the second ground, it needs to be seen that the trial Court proceeded on the assumption that the appellant was served with summons and engaged an advocate also. When a specific plea was raised by the appellant herein, that she was neither served with notice, nor did she engage an advocate at all, the trial Court was under obligation to verify the record, and come to a definite conclusion. Except making a reference to a docket order, dated 16-09-2002, it does not appear that the vakalat, said to have been filed by the appellant, was traced at all. Further, there is any amount of uncertainty, if not, self-contradiction in the entry. It reads: “Summons await unserved, not claimed. Sri Narayana Rao Advocate filed vakalat and posted to 10-10-2002”. If the summons were not claimed, in a way, it can be deemed that they have been served. The first sentence is not only grammatically unsound, but it does not make any sense at all. One cannot discern from it, as to whether the Court wanted to await summons, or to take further steps, since the summons were not claimed. Added to that, the filing of vakalat was mentioned. If vakalat is filed, the Court does not even have to verify whether summons were served, or not. In this scenario, the trial Court ought to have carefully examined the record, when the appellant filed an application under Order IX Rule 13 C.P.C. It proceeded on the assumption that the appellant had engaged an advocate, by name, Narayana Rao. Now-a-days, it is not uncommon that plaintiffs, who are smart enough, resort to arrange for filing vakalats on behalf of the defendants also, with the object of misleading the Court, and obtain an ex parte decree. Even now, the trial Court can verify the record and arrive at proper conclusions. Hence, the C.M.A is allowed, and the order under revision is set aside. The matter is remanded to the trial Court for fresh consideration and disposal. It is directed that the application shall be treated as having been filed within the period of limitation, and a specific finding shall be recorded, after giving opportunity to both the parties, as to whether the appellant herein had engaged Sri Narayana Rao, advocate, in the suit. There shall be no order as to costs. ________________________ L. NARASIMHA REDDY, J. Dt.10-08-2010. KO