IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.67 of 2011. Date:23.08.2011 Between:- Yerubandi Swamy Gangadhar ..Appellant/Petitioner/defendant And Nainala Sowjanya Rani .. Respondent/Respondent/Plaintiff JUDGMENT:- The Civil Miscellaneous Appeal, under Order XLIII Rule 1 read with Section 104 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) is directed against the order in I.A.No.998 of 2010 in O.S.No.94 of 2006 on the file of the I Additional Senior Civil Judge, Rajahmundry, whereunder and whereby the petition under Order IX Rule 13 read with Section 151 C.P.C. to set aside the ex parte decree, dated 05.06.2006, in the suit was dismissed. 2. The appellant herein is defendant and the respondent herein is the plaintiff in the suit. For better appreciation of facts, the parties are hereinafter referred to as arrayed in the suit. 3 . The averments in the affidavit filed by the defendant are as follows: The defendant received a notice from one P.N.N.Tagore, Advocate, Rajahmundry under the instructions of Vutukuri Bhavani stating that O.S.No.94 of 2006 was filed against him and an ex parte decree was also passed against him on 05.06.2006. He has no knowledge about filing of the suit by the plaintiff against him except by the notice, dated 31.08.2010. He never received any notice from the Court. Plaintiff is fully aware of his correct address, but she wantonly took summons to his old address, which house was sold away long back in the year 2003. The fact of selling the property by him in the year 2003 is very much known to the plaintiff, but she wantonly took summons to wrong address and got him set ex parte and obtained ex parte decree. He never received any documents in the suit, as such, he is not in a position to answer the contents of the suit. There are no willful laches on his part in not entering his appearance and contesting the suit. He has no knowledge about filing of the suit until he received the said notice. If he is not afforded with an opportunity to contest the matter by setting aside the ex parte decree passed against him on 05.06.2006, he would suffer serious and irreparable loss and prayed to set aside the said ex parte decree. 4. A detailed counter-affidavit has been filed by plaintiff contending that the defendant is fully aware of all the proceedings in the Court against him from the date of filing of the suit till date. The defendant received summons sent through Court in the year 2006 and wantonly remained ex parte on the evil advice of his relatives, who have got sufficient knowledge in the judicial proceedings, and he never cared to engage an Advocate all these years. In the circumstances, the Court passed a preliminary decree in his favour. In pursuance of the preliminary decree, she filed I.A.No.368 of 2007 for passing of final decree wherein the defendant purposefully evaded to receive the summons. Consequently, the Court was pleased to order substituted service to defendant by publication in Prajasakthi daily news paper. The defendant did not choose to appear before the Court despite publication. The defendant, after borrowing the money from her, executed the pronote and deposited his title deeds pertaining to the plaint schedule property with her with an intention to create an equitable mortgage by deposit of title deeds. Suppressing that fact, the defendant transferred the property on the name of Vutukuri Bhavani, his own mother-in-law, to create unnecessary litigation and to defraud her. The fact of selling the property by the defendant in the year 2003 is not known to her. After passing of the final decree, she filed E.P.No.22 of 2009 for sale of the plaint schedule property wherein the defendant evaded to receive the summons and failed to appear before the Court and the Court was pleased to order substituted service by way of publication and as he failed to appear, he was set ex parte. The defendant is not an illiterate. He simply transferred the property in the name of his mother-in-law without mentioning anything about the original title deeds, knowing fully well that the plaint schedule property is under mortgage. So, the alleged transfer is void. The defendant filed the petition at a belated stage and there are no merits and prayed to dismiss the petition. 5. Learned counsel for the appellant/defendant contended that the observation of the trial Court that the appellant/defendant received the summons through registered post on 05.04.2006 is incorrect in view of the fact that when the appellant/defendant applied for the certified copy of the acknowledgment, dated 05.04.2006, it was not found in the record, as per the endorsement, dated 18.11.2001, made by the Copyist Department, and therefore, he prays to set aside the impugned order. 6. On the other hand, learned counsel for the respondent/plaintiff contended that the appellant/defendant received the summons through Court in April, 2006 and wantonly did not appear before Court; that the interim order, dated 08.02.2011, passed by this Court has not been complied with by the appellant/defendant and such a person does not deserve for setting aside the ex parte order; and considering these aspects, the trial Court rightly dismissed the petition and there are no grounds to interfere with the same. 7. Order IX Rule 13 C.P.C. provides that where an ex parte decree is passed against a defendant, he may apply to the Court passing such decree to set it aside and if he satisfies the Court that summons was not duly served upon him, or he was prevented by sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the decree as against him and appoint a day for proceeding with the suit. The reason given by the defendant is that he did not receive any summons whereas the respondent/plaintiff is contending that in the year 2006 itself, summons have been served on the appellant/defendant. In pursuance of the interim order, dated 08.02.2011, passed by this Court, the appellant/defendant has not complied with the orders of this Court. The suit is based upon a mortgage deed. A preliminary decree was passed. It is brought to the notice of this Court that a final decree has been passed by the trial Court and in the execution proceedings, when the property is brought for sale, the present application is filed with a view to avoid further proceedings and the petitioner is having knowledge about the pending proceedings. The suit is of the year 2006. There is no averment in the affidavit filed in support of the petition that the appellant/defendant has not received the summons in the final decree proceedings and the affidavit is silent as to at what point of time he got knowledge about the passing of the preliminary or final decrees. Therefore, there are no bona fides on the part of the appellant/defendant to approach this Court. He has not come to the Court with clean hands. The Court has a very wide discretion in imposing such terms on the defendant as it thinks fit before setting aside the ex parte decree. It may order payment of costs or may order the defendant to deposit the decretal amount in the Court in an appropriate case. The words “upon such terms as to costs, payment into Court or otherwise as it thinks fit” occurred in Order IX Rule 13 C.P.C. make it amply clear that such terms may relate to deposit of entire decretal amount. To give an opportunity to appellant/defendant to show his bona fides, the appellant/defendant is directed to deposit entire decretal amount with interest and costs within a period of four (4) months from today. On such deposit, the respondent/plaintiff is entitled to withdraw 50% of the amount in deposit without furnishing any security and remaining amount by furnishing security. For any reason the appellant/defendant fails to deposit the entire decretal amount with costs and interest into the Court as directed, the order passed by the trial Court shall stand confirmed without reference to this Court. 8. With the above direction, the Civil Miscellaneous Appeal is disposed of. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 23rd August, 2011 AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.67 of 2011. Date:23.08.2011 AMD