IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN C.R.P.Nos. 5609, 5738 & 5739 of 2008 Between: K.Bhaskar Rao and others. ..... PETITIONER(S)/Respondents/plaintiffs AND A.Sattiraju .....RESPONDENT(S)/Appellant/D-1 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN C.R.P.Nos. 5609, 5738 & 5739 of 2008 COMMON ORDER: The petitioners in all the three C.R.Ps. are the same. They are the plaintiffs in three suits against which these three C.R.Ps. are filed. The suits were filed to declare the sale deeds, dated 05-07-1988, executed by R-2 (the petitioners-plaintiffs’ father) as null and void and for permanent injunction. The 1st respondent in all the three suits is the person who purchased different extents of land under the registered sale deeds dated 05-07-1988, executed in their favour by the petitioners’ father i.e. the 2nd respondent herein. 2. The case of the petitioners herein is that the 1st respondent had filed caveats and as a result the suit summons were sent to them at the very same addresses, as referred to in the caveat petitions, despite which they were returned with an endorsement that the addressee had left the premises. The Trial Court ordered substituted service and, accordingly, notice was effected by proper publication in the year 1991. As the 1st respondent failed to appear the Suits were decreed ex parte on 11-12-1992. 3. More than 13 years thereafter, the 1st respondent herein filed three applications, one in each of the Suits, on 03-03-2006 to condone the delay of 13 years 117 days in filing the petition to set aside the ex parte decrees. The 1st respondent herein alleged collusion between the petitioners-plaintiffs and their father i.e. the 2nd respondent-2nd defendant. All the three applications filed to condone the delay were dismissed by the Trial Court. Aggrieved thereby, the 1st respondent herein preferred C.M.As. before the III Additional District Judge, Medak who, by order dated 29-08-2008, condoned the delay of 13 years 117 days and set aside the ex parte decrees on condition of payment of costs of Rs.4,862/- in each case. It is stated across the Bar that the costs, directed to be paid by the Appellate Court, has been deposited to the credit of the respective Suits. 4. The Appellate Court’s order, to say the least, is perfunctory. While the contentions urged both on behalf of the Appellants and the Respondents were noted, including the contention based on the explanation to Article 123 of the Limitation Act (for brevity ‘the Act’), the Appellate Court condoned the delay on the ground that there was a prima facie suspicion that the petitioner-plaintiff had obtained the decree as a result of collusion. It is difficult to discern how the inordinate delay of 13 years 117 days could have been condoned on a prima facie suspicion of collusion. 5. Sri J.V.Suryanarayana, Learned Senior Counsel appearing on behalf of the 1st respondent, would, however, draw attention of this Court to the explanation to Article 123 of the Act, whereunder, for the purposes of Article 123, substituted service under Rule 20 of Order V CPC does not amount to due service. Learned Senior Counsel would contend that, since the substituted service taken out by the Revision petitioners herein, on the suit summons not having been served, does not itself amount to due service, the delay has to be reckoned only from the date of knowledge and not from the date on which the notice was published in the newspapers. 6. While the Appellate Court notes the judgment of this Court i n Jonnalagadda Shuhasini and others V. Ravela Arogyaiah[1], whereunder the scope of Article 123 of the Act was considered, no finding is recorded in this regard nor has the Appellate Court examined the extent of delay from the date on which the 1st respondent claims to have been aware of the ex parte decree passed against him. The orders of the Appellate Court must, therefore, be and are, accordingly, set aside. The matter is remanded to the III Additional District Judge, Medak, to hear and decide C.M.As.43, 44 and 45 of 2007 afresh in accordance with law. It is made clear that both the petitioner and the 1st respondent shall be entitled to put-forth all such contentions before the Appellate Court as are available to them in law. The orders passed in the C.M.As. are set aside and remanded for fresh consideration. 7. All the three C.R.Ps. are accordingly disposed of. There shall be no order as to costs. ___________________ December 1, 2009 kvr [1] 2006 (5) ALT 222