THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.586 of 2004 ORDER: The 1st respondent filed O.S.No.29 of 2002 in the Court of I Additional District Judge, Ranga Reddy District, against the appellant (1st defendant) and his wife, the 2nd respondent. The suit was decreed ex parte, on 18.07.2002. Thereupon, the appellant filed I.A.No.3015 of 2003, under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree. He pleaded that he was an employee in Nuclear Fuel Complex and he developed serious skin decease, and for treatment thereof, he went to Kerala State and remained there for a period of three years, between 30.11.2000 and 25.11.2003. According to him, the place where he stayed, did not have any facility of communication and he was not aware of filing of the suit at all. He stated that, he came to know about the filing of suit, only when an attempt was being made by the 1st respondent to bring the property of the 2nd respondent to sale. The 1st respondent opposed the I.A., by filing a counter. According to him, the summons in the suit were served upon the appellant and that the I.A. is not maintainable, since no application was filed under Section 5 of the Limitation Act, for condonation of delay. The facts pleaded by the appellant explaining his absence, or lack of knowledge, were also disputed. Through its order, dated 17.01.2001, the trial Court dismissed the I.A. Hence, this C.M.A. Sri K.V.L.Jaya Simha, learned counsel for the appellant, submits that his client did not receive summons, in the suit, at all, in view of the fact that he was out of station, and even assuming that the summons were served upon the 2nd respondent, it cannot be treated as service upon the appellant. He further submits that the trial Court ought to have given an opportunity to the appellant to contest the matter, on merits. None appears for the 1st respondent. The appellant herein was set ex parte in the suit on 17.06.2002. Thereafter, an ex parte decree was passed on 18.07.2002. The appellant filed an application under Order IX Rule 13 C.P.C., only in the year 2003 and it was not accompanied by an application for condonation of delay. The grounds urged by him are that, summons were not served upon him and that he was out of station, for a period of three years. So far as the first ground is concerned, the trial Court verified the record and found that the summons sent to the appellant as well as his wife, the 2nd respondent, were served on 23.04.2002. This is not a case where the appellant and his wife are living separately. It is also not a case where the wife of the appellant is not supposed to know the pendency of the cases, in which she is not a party. The appellant and his wife are arrayed as defendants 1 and 2. The 2nd respondent did not dispute the factum of service of summons upon her. The record discloses that after the suit was decreed, the 1st respondent filed E.P., against the 2nd respondent. At that stage, she filed an application under Order IX Rule 13 C.P.C., accompanied by an application to condone the delay. The trial Court refused to condone delay, through its order, dated 18.07.2003 and that order was affirmed by this Court in a revision. At that stage, the petitioner entered the scene, obviously, to thwart the execution proceedings that were in progress against the 2nd respondent. The I.A. was filed almost one year and four months after the suit was decreed ex parte. It was not accompanied by an application for condonation of delay. The facility to file application to set aside an ex parte decree within 30 days from the date of knowledge, is available only to those defendants, who are not served with summons. Once the summons are served, the limitation starts from the date of ex parte decree. Therefore, I.A.No.3015 of 2003 was barred by limitation and it was not maintainable at all. On merits also, the plea raised by the appellant cannot be accepted. It is unthinkable that he was not in touch with his wife for years together. This Court finds that there are no bona fides on the part of the appellant. An unconditional stay was granted in his favour on 24.02.2004. By that time the E.P. against his wife, the 2nd respondent, was in progress. He complained to this Court that despite the absolute stay granted in this appeal, the E.P. was proceeded with. Therefore, an explanation was called for from the trial Court. A detailed report is submitted on 19.04.2004, stating that at no point of time the execution was proceeded against the appellant and it was only against his wife. The timing of filing of the application, namely after the C.R.P. filed by his wife was dismissed, and the nature of representation made to this Court, are totally objectionable. The appellant resorted to every possible trick, to prevent the execution of the decree. The C.M.A. is accordingly dismissed, with costs of Rs.5,000/-. In case the decree is not satisfied yet, the Executing Court shall proceed with the E.P., and conclude the proceedings within three months; and report compliance to the Registry. If the 1st respondent is not immediately pursuing the matter, it shall issue notice to him. ______________________ L.NARASIMHA REDDY, J Dated:26.08.2010 GJ