IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5331 of 2005 BETWEEN: Potlapalli Sathaiah. ... PETITIONER AND Induru Bapu and another. ...RESPONDENTS Counsel for the Petitioner : SMT. S.A.V. RATNAM Counsel for the Respondents: --NONE APPEARED-- The Court made the following: ORDER: The first defendant in O.S.No.3 of 2004 on the file of the Junior Civil Judge, Sirpur, is aggrieved by dismissal of his application being I.A.No.213 of 2004 seeking condonation of delay of 109 days in filing petition to set aside the ex parte decree passed on 19.03.2004. 2. The present application was filed by the petitioner on 25.10.2004 stating that that for the last 15 years he is residing at Nalgonda and the summons in the suit was sent to the village and in the absence of the petitioner the same was returned unserved. Thereafter, on enquiry with the Advocate, the petitioner came to know that summons was served on D1, his father-in-law, and he came to know that suit was decreed ex parte on 19.03.2004 on the basis of information given by the Advocate with whom he made enquiries. The petitioner, thereafter, filed the present application seeking condonation of delay along with the petition to set aside ex parte decree. The said application was opposed by the respondent/plaintiff disputing the statement of D2 – petitioner that summons was not received and it was claimed that as per Process Server’s report, the summons was served on the father-in-law of the petitioner and that the said father-in-law assured that he will get the petitioner on the date of hearing. The father-in-law of the petitioner is defendant No.1. 3. In the present application, the Court below has considered the Process Server’s report and has concluded that the father-in-law of the petitioner must have informed the petitioner and as such, there is no ground to set aside the ex parte nor there is any ground to condone the delay. 4. Heard learned counsel for the petitioner. Respondent No.1 is shown as unserved, who died, and Respondent No.2 is served. Since respondent No.2 is the son of respondent No.1 and his estate is, in any case, represented there is no impediment as to abatement nor there is any necessity to bring on record the legal representatives. The second respondent though served, nobody appears, though the matter is coming for last three dates continuously. 5. After hearing the learned counsel for the petitioner and after perusing the affidavit filed by the petitioner and the counter filed by the respondents, it is clear that the summons in the suit were not served on the petitioner and as per Process Server’s report, the said summons was served on D1, though meant for the petitioner. The assumptions of the respondents/plaintiffs as well as that of the Court below that the petitioner might have had knowledge of the suit etc. is not sufficient unless the summons is served on the petitioner. The delay in filing the application to set aside ex parte decree, therefore, as explained by the petitioner in his affidavit, ought to have been accepted and the petitioner ought to have been given opportunity to defend the matter on merits. I am, therefore, not inclined to sustain the impugned order and the same is liable to be set aside and is accordingly set aside. The application of the petitioner in I.A.No.213 of 2004 is consequently allowed, however, on condition that the petitioner shall deposit costs of Rs.1,000/- (Rupees One Thousand only) to the credit of the suit within three (3) weeks from today. In the event of compliance of the said condition the Court below shall give opportunity to the petitioner to file written statement and shall decide the suit expeditiously and in any case, before the end of December 2010. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 3, 2010 DSK