HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No.4152 OF 2003 JUDGMENT: Respondent filed O.S. No.242 of 2002 against the appellant in the Court of the III Senior Civil Judge, City Civil Court, Secunderabad for recovery of a sum of Rs.3,69,520/-. It was pleaded that the appellant placed an order for supply of Proxima Ultra Light SVI + LCD Projector and though the equipment was supplied, the consideration thereof, was not paid. The suit was decreed ex parte on 14-08-2002. Thereafter, E.P. No.11 of 2003 was filed. At that stage, appellant filed I.A No.251 of 2003 under Order – IX Rule – 13 CPC with a prayer to set aside the ex parte decree dated 14-08-2002. It was pleaded by the appellant that he did not receive any summons in the suit, and that soon after he came to know about the execution proceedings, he filed the I.A. It was further pleaded by the appellant that he did not have any transactions with the respondent and the suit claim is untenable. The application was resisted by the respondent. The trial Court dismissed the I.A. through its order dated 18-06-2003. Hence, this CMA. 2. Heard the learned counsel for the appellant. There is no representation for the respondent. 3. Respondent filed the suit for recovery of an amount against the appellant, based upon a commercial transaction. The trial Court has set the appellant herein ex parte on noticing that the summons sent through a private courier were refused by the appellant. In a way, the trial Court proceeded on the assumption that the appellant is deemed to have been served with summons in the suit. The appellant strongly refuted that fact. The record, however, does not disclose that any oral evidence or documentary evidence was adduced in relation to such a serious disputed fact. Normally, whenever the service of summons through bailiff is disputed by the defendant in a suit, the bailiff concerned, is examined as a witness or other oral and documentary evidence is adduced. Since an ex parte decree would fasten the liability of a party without being heard, an element of indulgence deserves to be shown. This Court is of the view that ends of justice would meet if the ex parte decree is set aside by directing the appellant to deposit half of the decreetal amount. 4. Hence, the Civil Miscellaneous Petition is allowed and the order under appeal is set aside. Consequently, I.A. No.251 of 2003 is allowed by setting aside the ex parte decree, on condition that the appellant – petitioner shall deposit half of the decreetal amount, within eight (8) weeks from today. The manner in which the amount shall be dealt with would depend upon the outcome of the suit. ____________________ L. NARASIMHA REDDY, J August 19, 2010. KTL