THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. No. 1232 of 2005 JUDGMENT: This civil miscellaneous appeal is directed against an order made in I.A. No. 216 of 2005 in O.S. No. 3 of 2004, dated 2.12.2005, on the file of learned Senior Civil Judge, Rajam, Srikakulam District, whereunder the I.A. filed under Order IX Rule 13 CPC seeking to set aside the ex parte decree made in O.S. No. 3 of 2004 dated 7.9.2004, was dismissed. Appellant is the defendant and respondent is the plaintiff. It appears, respondent laid suit in O.S. No. 3 of 2004 for recovery of amount of Rs.7,15,000/- on the basis of some transaction between the parties relating to sale of molasis etc. It appears, notices sent by the Court were returned saying that the addressee was out of station. In view of that, respondent-plaintiff prayed for substituted service, which was ordered, and the same was published in Hindu daily newspaper of Visakhapatnam Edition. In spite of that, defendant did not appear before the Court and, therefore, an ex parte decree was passed on 17.9.2004. Immediately thereafter, the E.P. was filed. After service of notice in the E.P., defendant appeared and filed an application under Order IX Rule 13 CPC seeking to set aside the ex parte decree made in O.S. 3 of 2004 dated 17.9.2004, on the ground that he came to know as to filing of the suit only after the notice in the E.P. was served and from the date of knowledge there was no delay in filing the said application. However, the said application was dismissed on the ground that the person who filed the I.A. was not the proper person and, apart from that, as required under the law, there was no application under Section 5 of the Limitation Act seeking to condone the delay of more than 297 days in filing the application under Order IX Rule 13 CPC. Aggrieved thereby, present C.M.A. is filed. Learned counsel for the appellant strenuously contended that the Court below failed to see that no notice of any kind was served on the appellant-company and the purported substituted service could not be noticed by the appellant, as the same was published in Hindu daily newspaper of Visakhapatnam Edition, which has no circulation at the place where the appellant-company is located. The appellant-company is located in Dhinkanal District of the State of Orissa and the person who filed the affidavit has the authority to represent the appellant-company. Therefore, the Court below ought to have allowed the application filed by the appellant-company. Be that as it may, it appears from the affidavit filed in I.A. No. 216 of 2005 that the appellant-company admitted that it owes an amount of Rs.5.00 lakhs for the alleged transaction took place but not Rs.7,50,000/- as claimed by respondent-plaintiff. In the facts and circumstances of the case, the contention that the substituted service as ordered by the Court below was published in Hindu Edition of Visakhapatnam, which has no circulation in the place where the appellant-company is located, appears to be true. Therefore, to give one more opportunity to the appellant to defend its case, Court below ought to have allowed the I.A. filed by it. However, even if there is no delay from the date of knowledge, since there was delay from the date of decreeing the suit ex parte till the date of filing application under Order IX Rule 13 CPC, it is always desirable that the person seeking to set aside the ex parte decree should also file an application under Section 5 of the Limitation Act, seeking to condone the said delay. In the result, the order under appeal is set aside and the matter is remanded to the Court below for fresh consideration. Appellant herein is directed to file formal application under Section 5 of the Limitation Act for condoning the delay and the Court below may consider passing appropriate orders on the said application as well as the application under Order IX Rule 13 CPC, on payment of the admitted amount of Rs.5.00 lakhs by the appellant-company, in accordance with law. The C.M.A. is accordingly allowed and the matter is remanded to the Court below with the above directions. No order as to costs. JUSTICE C.V. RAMULU. Date: 12-8-2010. MVB.