IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.1169 OF 2005 Between : M/s. Traveller, Tours &Travels Rep.by Sri U.Srikanth. ... PETITIONER A N D M/s. Sri Ram Chits Ltd., …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.1169 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Order XLIII Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the order and decree, dated 31.10.2005, in I.A.No.1070 of 2005 in O.S.No.1245 of 2001 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the application filed under Order IX Rule 13 CPC to set aside the ex parte decree, dated 21.03.2005, was dismissed. 2. O.S.No.1245 of 2001 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, was filed by the respondent /plaintiff for recovery of a sum of Rs.4,02,198/-. Due to ill health of the appellant’s parents and also ill health of the appellant, he was forced to stay at Hanumakonda from 2003 to October 2004. While the matter stood thus, due to non-service of summons to the appellant on 27.04.2004, the Court below ordered notice by publication and the same was published in Andhra Jyothi, City edition on 30.06.2004. Thereafter, as the appellant was called absent, he was ex parte and an ex parte decree was passed on 21.03.2005. Thereafter, the appellant filed above Interlocutory Application to set aside the ex parte decree, dated 21.03.2005 stating that due to non-service of suit summons, the appellant was not present before the Court below. The Court below dismissed the application. Hence, the Civil Miscellaneous Appeal. 3. Notice to the appellant was taken through substituted service. The appellant was set ex parte basing on the paper publication filed on 30.06.2004. The ex parte decree was passed on 21.03.2005. Unless the appellant has knowledge about the proceedings, he would not have filed a petition immediately under Order IX Rule 13 CPC to set aside the ex parte decree. 4. Order IX Rule 13 CPC enacts 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 satisfied the Court that the summons was not duly served upon him, or he was prevented by sufficient cause from appearing whether 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 second proviso states that the Court cannot set aside the decree merely on the ground of irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear in the Court. 5. Therefore, the appellant has not come to the Court with clean hands and hence, there are no grounds to set aside the ex parte decree, dated 21.03.2005. 6. However, considering the fact that the appellant has got old age parents and he is suffering from Super Pulmonary and has been taking treatment from Dr.G.Venkateswarlu, the appellant can be permitted to pay the decreetal amount by way installments. 7. Accordingly, the Civil Miscellaneous Appeal is dismissed giving liberty to the appellant to pay the decreetal amount in 20 monthly installments commencing from April, 2011. The monthly installment shall be payable by the appellant on or before 10th of every succeeding month. If for any reason, the appellant fails to pay a month installment, liberty is given to the respondent/plaintiff to execute the decree in accordance with law. There shall be no order as to costs. _______________ K.C.BHANU, J MARCH 22, 2011 YVL