Judgment :- SRINIVASAN, J. 1. This is a petition for condonation of delay of 200 days in filing the appeal. The relevant facts are as follows: The appeal is directed against a decree passed in C.S. No. 73 of 1979 on the file of the Original Side of this Court. The subject matter of the said suit is a portion of the building bearing Door No. 56/57 Lingi Chetty Street, George Town, Madras-1. The respondent herein filed the said suit for a decree against defendants 1 to 4 for recovery of possession of the portion of the said building on the ground that it was leased out to him and the tenancy had not been terminated. He also prayed for a decree against all the defendants jointly and severally for recovery of moveables described in Schedules A to H or in the alternative for payment of a sum of Rs. 11,15,100/- being the value of the said moveables recoverable from all the defendants jointly and severally. Besides, he prayed for a sum of Rs. 10,000/- towards damages for malicious trespass and conversion committed by all the defendants recoverable jointly and severally. According to the respondent, the defendants in the suit 15 in number trespassed on the portion leased out to him on 22.1.1974 when he was absent from the building and removed all the moveables belonging to him. There was previously a proceeding before the Rent Controller in H.R.C. 2515 of 1973 for eviction. After the said trespass on 22.1.1974, the petitioners in H.R.C. 2515 of 1973 represented to the court on 9.2.1974 that vacant possession has been surrendered and they were not continuing the said proceeding. An order was passed on 18.2.1974 dismissing the said proceeding in view of the endorsement made by the petitioners therein. 2. The suit was filed on 22.7.1974 for the reliefs set out above. The plaint was returned for rectification of certain defects. It was re-presented after a delay of two years and 245 days. It was condoned on an application taken out by the respondent. The order of condonation of delay was passed on 12.1.1978. The plaintiff had also permitted sented along with the plaint an application for mission to institute the suit in forma pauperis That was taken on file and allowed on 30.1.1979. Thereafter, the suit was numbered as C.S. 73 of 1979. The order of condonation of delay was passed on 12.1.1978. The plaintiff had also permitted sented along with the plaint an application for mission to institute the suit in forma pauperis That was taken on file and allowed on 30.1.1979. Thereafter, the suit was numbered as C.S. 73 of 1979. Summonses in the suit were served on some of the defendants. Defendants 5, 6 and 12 entered appearance and also filed written statements contesting the said suit. In so far as the petitioners in this petition are concerned summons issued to them was received by their father on 6.6.1979. The plaintiff made an endorsement on 29.1.1983 that he was withdrawing the suit as against defendants 5, 6 and 12 who had filed written statements earlier. On 15.3.1983 the plaintiff gave up defendants 5 to 15 and thus, the suit remained only as against defendants 1 to 4 though the cause-title remained unaltered and the plaint was not consequently amended. On that day, defendants 1 to 4 were set ex parte and the evidence of the plaintiff was recorded by the Court. On the basis of the evidence of the plaintiff, the suit was decreed on that date. In the judgment, this Court observed as follows: “It is clear that defendants 1 to 4 have trespassed and removed the articles mentioned in Schedules A to H to the plaint. Under these circumstances the plaintiff will be entitled to a decree for recovery of possession of leased out portion in Block No. 4, Second floor, No. 57, Lingi Chetry Street, Madras and for a decree for recovery of the moveables mentioned in Schedules A to H. The suit is decreed for those two reliefs and is dismissed in other respects as there is no clear evidence of the damage caused on account of malicious trespass. To the extent the plaintiff has succeeded. Defendants 1 to 4 will pay the court fee due to Government and to the extent the Plaintiffs claim is dismissed he will pay the court fee. The suit against defendants 5 to 15 is dismissed without costs.” 3. The plaintiff filed A. No. 2239 of 1983 on 2.7.1983 for amending the decree in order to mention the value of the moveables therein. In that application, notice was ordered by the Court on 21.7.1983 to defendants 1 to 4. The suit against defendants 5 to 15 is dismissed without costs.” 3. The plaintiff filed A. No. 2239 of 1983 on 2.7.1983 for amending the decree in order to mention the value of the moveables therein. In that application, notice was ordered by the Court on 21.7.1983 to defendants 1 to 4. When the matter came up before the Court again on 5.3.1984, at the instance of the plaintiff, the learned judge observed that notice issued in the first instance was returned unserved and the proposed amendment certainly required evidence and therefore, further notice had to go to the respondents to avoid any future complications. Therefore, he directed issue of fresh notice through Court. The plaintiff was also permitted to take up private notice for the hearing on 27.3.1984. 4. Though substituted service was ordered in the said application and a publication was made in a Tamil newspaper on 18.11.1986, service of notice was not completed by affixture thereof at the last know residence or in the Court Notice Board. The matter was pending till about 1995. On 24.1.1995, the Master of this Court directed issue of notice by effecting substituted service. On 27.1.1995, the notice was affixed on the Court Notice Board and on the Door of 56, Linghi Chetry Street. On 1.2.1995 the application was heard by the Court. The learned single Judge passed an order relevant part of which reads as follows: “In this application also notice has been served on the respondents 1 to 4 only by way of substituted service. The remaining respondents have been given up. The respondents 1 to 4 also did not appear. While directing the decree in clause I(b) of the decree mentioned the relief of recovery of the moveable articles more fully set out in the Schedule A to H but the value of the moveables has been omitted to be stated in the decree. Hence, the present application had been filed. Order 20, Rule 10, C.P.C. makes it clear where the suit is for movable property and the decree is for delivery of such property the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had. Since in the plaint in the relief portion the plaintiff has valued the value of the moveables mentioned in the Schedule A to H at Rs. Since in the plaint in the relief portion the plaintiff has valued the value of the moveables mentioned in the Schedule A to H at Rs. 11,15,100/- the decree should contain the value of the moveables also. Since it is an ex parte decree this Court has no opportunity to assess the value of the moveables. Hence the suit has to be decreed as prayed. The amendment sought for is ordered. The application is allowed.” 5. Thereafter, the plaintiff instituted proceedings for execution of the decree. The notice in the execution proceedings was served on 13.6.1995 on the petitioners herein at 158, Linghi Chetty Street. They engaged a Counsel who inspected the records on 29.6.1995. Thereafter, they filed A. Nos. 3129, 3130, 3929, 3930, 3541, 3542 and 3272 of 1995 for setting aside the ex parte decree passed on 15.3.1983 and for other reliefs. These applications were dismissed by a common order dated 12.10.1995. The petitioners filed O.S.A. Nos. 12 and 13 of 1996 against the said order and filed interlocutory applications for various reliefs. When those matters are pending, the petitioners have preferred this appeal against the ex parte decree dated 15.3.1983 as amended on 1.2.1995 along with this petition for condonation of delay. 6. In the affidavit filed in support of the petition, first petitioner has stated that if the date of decree is taken to be 15.3.1983, there is a delay of 13 years 7 months and 13 days and on the other hand, if the date of decree is taken as 1-2-1995, there is a delay of 331 days. He proceeds to state that the delay is not wilful nor deliberate nor due to any negligence on the part of the petitioners. According to the affidavit, the delay is due to reasons beyond the control of the petitioners and there is sufficient cause to condone the delay in filing the appeal. 7. Reference is made to the substance of the plaint in the suit and the fact that there were 15 defendants out of whom defendants 5 to 15 were given up latter. Reference is also made to the fact that the plaint was re-presented after a delay of two years and 245 days which was condoned in A. No. 140 of 1977. Reference is also made to the fact that the plaint was re-presented after a delay of two years and 245 days which was condoned in A. No. 140 of 1977. It is stated that the first defendant in the suit, viz., All India Trading Company was a registered partnership which came into existence in 1961 and that the father of the petitioners was the Managing Partner along with the petitioners and others. The petitioners retired from the partnership on and from 1.4.1976 and ceased to have any interest in the firm thereafter. The petitioners after receipt of the summons in the petitions of condonation of delay in re-presentation as well as for permission to sue in forma pauperis contested the petitions. The petitioners had no knowledge about the service of suit summons for the reasons set out therein. They moved out of Door No. 56/57 Linghi Chetty Street. The second petitioner settled his family at No. 158, Linghi Chetty Street and went to Tuticorin to look after the business of his own. The suit summons was received by the father on 6.6.1979. First petitioner was also not living with his father and he was not even in the city of Madras. The petitioners father did not inform them about the summons. The petitioners were not aware of the decree passed in the suit until they received notice in E.P. No. 65 of 1995. Thus, they got the knowledge of the decree only on 13.6.1995. In that Execution Petition the plaintiff had mentioned only the date of decree as 15.3.1983 and there was no mention of the date of amendment therein. As the petitioners were misled by the contents of the Execution Petition, they were not aware of the amendment of the decree. The period of limitation has to be calculated only from 13.6.1995 and if the time allowed for filing the appeal, i.e. 30 days is deducted, the delay is only 200 days. The petitioners have been bonafide prosecuting other proceedings for setting aside the ex parte decree. When they came to know of the amendment of the decree of 1.2.1995, they were advised to file the appeal. It turned out that the substituted service effected in the application for amendment of the decree was not validly effected. The petitioners have been bonafide prosecuting other proceedings for setting aside the ex parte decree. When they came to know of the amendment of the decree of 1.2.1995, they were advised to file the appeal. It turned out that the substituted service effected in the application for amendment of the decree was not validly effected. The notice was fixed only at Door No. 56/57, Linghi Chetty Street, whereas, the door number had changed even long before and the changed Door Number is 218. The Court erroneously proceeded on the footing that there was compliance with the order of substituted service. Neither of the petitioners was living at Door No. 218 which was formerly 56/57, Linghi Chetty Street. There was no affixure at Door No. 158, Linghi Chetty Street. The petitioners came to know of the amended decree only on 22.12.1995 when the records were inspected by the counsel for the petitioners. Thus, the date of knowledge of the amended decree was only on 22.12.1995. If that date is taken to be the relevant date, the appeal filed on 29.1.1996 is within time. But as a matter of caution the application is taken out for condonation of delay. It is further stated that the deponent of the affidavit went to Tuticorin in 1976 and left for Doha-Quatr, a Gulf country on 21.3.1981. Thereafter, he was mostly in Bombay making arrangement to obtain employment in Saudi Arabia and went to Saudi Arabia on 30.6.1983. Thus, he was searching for gainful employment in foreign countries from 1981 onwards. He was not in India when the decree was passed on 15.3.1983. A separate affidavit has been filed by the second petitioner in which he has stated that he was present along with his counsel when he inspected the records in the Execution Petition on 29.6.1995. According to the affidavit, they verified only with regard to the question whether service was effected by due process. They verified only the summons of the petitions and they did not inspect the other records as they did not have any reason to suspect that the decree had been amended. They were misled by the contents of the Execution Petition. They had no knowledge of the amendment of the decree on 29.6.1995. 8. A detailed counter affidavit has been filed by the respondent who is referred as plaintiff. They were misled by the contents of the Execution Petition. They had no knowledge of the amendment of the decree on 29.6.1995. 8. A detailed counter affidavit has been filed by the respondent who is referred as plaintiff. While denying the various averments in the affidavits filed by the petitioners with regard to their absence from the city or their absence from the country, the plaintiff has also stated that the case put forward by the petitioners that they left the firm in 1976 and had nothing to do with it thereafter is false. The plaintiff has set out the history of the case prior to the filing of the suit also. The plaintiff has referred to the fact that counter affidavit was filed in A. No. 1402 of 1977 by the first petitioner contesting the said application. It is submitted that if really the first petitioner had come out of the partnership firm in 1976 as alleged by him, he could not have filed the affidavit representing the firm in 1977. There was a further counter affidavit filed in A. No. 301 of 1978 on 12.4.1978. In that also, the first petitioner has represented the firm. In the affidavit date 12.4.1978, the deponent has described himself as the Manager of the firm. There was no mention in the affidavits that the petitioners had left the firm in 1976. In the vakalat filed on 8.11.1978, the second petitioner has signed as the partner of the firm. As the summons in the suit has been served properly on the father of the petitioners who was entitled to receive on their behalf, it is not open to the petitioners to contend that they had no knowledge of the proceedings or the decree passed therein. The limitation for filing the appeal would commence from the date of the decree, viz., 15.3.1983 and there is a delay of 13 years which cannot be condoned. The affidavit also states that the petitioners were aware of the petition for amendment of the decree as notice had been served by substituted service by affixture at their residence. In any event, they should have come to know about the amendment when their counsel inspected the records on 29.6.1995. Reference to the proceedings to set aside the exparte decree is irrelevant in as much as, the said proceedings were dismissed as not maintainable. In any event, they should have come to know about the amendment when their counsel inspected the records on 29.6.1995. Reference to the proceedings to set aside the exparte decree is irrelevant in as much as, the said proceedings were dismissed as not maintainable. Provisions of S. 14 of the Limitation Act are not applicable. The petitioners have been grossly negligent and indifferent for 12 years and they cannot seek to have the delay in filings the appeal condoned. In short, the delay is not of 200 days as alleged by the petitioners, but it is for 12 years nine months and seven days. 9. The question to be considered by us is whether the delay in filing this appeal can be condoned. If the starting point of limitation is 15.3.1983, the delay is of 4672 days. If on the other hand, the starting point of limitation is 1.2.1995, the delay will be about 331 days. According to the petitioners, the starting point will be only if at all 13.6.1995, when they received the notice in the Execution Petition and the delay is only 200 days. There is also an alternative contention that they came to know of the amendment of the decree on 22.12.1995 and the appeal is in time. 10. On the question whether the amendment of the decree will provide a fresh starting point for calculating the time for filing the appeal, the views of the courts are not uniform. But, one principle is well settled that if the amendment materially alters the contents of the decree, then the starting point can be considered to be the date of amendment. But, even in such cases, it has been held that in so far as the relevant Article of the Limitation Act is concerned, the only date mentioned therein is the date of the decree and in all such cases, the Court has to consider whether the delay can be condoned and it is not a case of fresh starting point of limitation. 11. Before considering the relevant facts of this case, we would refer to the various rulings on this question. The general principles on which petitions for condonation of delay shall be disposed of by a Court of law are set out in the judgment of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji (A.I.R. 1987 S.C. 1353 = 100 L.W. 676 (S.C). The general principles on which petitions for condonation of delay shall be disposed of by a Court of law are set out in the judgment of the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji (A.I.R. 1987 S.C. 1353 = 100 L.W. 676 (S.C). The law is clearly laid down in the following passage in the said judgment. “The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ‘merits. The expressing “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:— 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very thresh hold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits arts hearing the parties. 3. “Every days delay must be explained.” It does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done be cause of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides . A litigant does not stand to benefit by resorting to delay. In fact, hie runs a serious risk. 6. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides . A litigant does not stand to benefit by resorting to delay. In fact, hie runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing in-justice and is expected to do so. Making justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. .. “The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause.” A similar principle is expressed by a learned judge of this Court in Subbarayan v. Ravimani Ammal (1988) (1) M.L.J. 294) in the following words: “It is a well-settled principle of law that the judicial discretion vested with the Court in considering the question of delay, however small or however large and enormous it may be, rests in the Courts discretion and it is that discretion that matters at the end. However much evidence may be available explaining each days delay, it is one which may stand or may not stand judicial scrutiny. The background against which the question of delay has to be approached is whether opportunity has to be granted or not to the person who knocks at the doors of the temple of justice for adjudication of the matter that had already been decided ex parte and a conclusion has to be arrived at. This backdrop should always be available in the area of judicial scrutiny; with this background alone, a court has to approach the question whether the delay is to be condoned or not.” 12. In Nagendra v. Ambica Charan (A.I.R. 1929 Calcutta 676) a Division Bench of the Court comprising Rankin, C.J. and B.B. Ghose, J., held that upon a strict construction of Article 182 of the old Limitation Act or in principle, case of an appeal from amended decree was in no way different from the case of an appeal from any other decree and as in the other case, appeal from an amended decree, postpones the date from which limitation runs for execution purposes. Whether a decree is amended, or is not amended the date of the decree is the date of the judgment and the fact that the decree is amended does not operate of itself to extend the time for appealing. The Bench held that when there is an amendment of the decree and it is reasonable that the time for appealing should be extended, recourse has to be had to the power of the Court under S. 5 of the Limitation Act. In Md. Yasin Khan v. Mt. Hansa (A.I.R. 1935 Oudh. 461) a Division Bench of that Court held that if an appeal is barred by limitation, nevertheless time could reasonably be extended under S. 5 of the Limitation Act in view of the amendment. In Janikamma v. Venkatarajagopala Chinnarao (1944-2-M.L.J. 384) a Division Bench of this Court held that the phrase “the date of the decree” in Article 156 of the Limitation Act, 1908 meant the date when the decree became appealable to the parry concerned and the appeal before them was not barred by time. The decree passed in the first instance having granted to the appellant therein all the reliefs, no appeal could be preferred then on the adverse finding with respect to the nature of the property as it was a finding to which no reference was made in the decree. But, when the decree was amended, the Court held that it gave the right of appeal to the appellant. This judgment was followed by another Division Bench to which one of the learned Judges (Wadsworth, J. was a party) in Venkatarao v. Sathiraju (A.I.R. 1946 Madras 21 = 59 L.W. 132). The Court held where an appellant does not contest the correctness of the original decree except in so far as he attacks the reduction of the decree by an amendment, time for filing an appeal should properly run from the date of amended decree and not the date of the original decree. In the course of the judgment, the Bench pointed out that the question of limitation is not really of great importance because, if the time had to be calculated from the date of the original decree, they could in a proper case excuse the delay under Section 5 of the Limitation Act. In the course of the judgment, the Bench pointed out that the question of limitation is not really of great importance because, if the time had to be calculated from the date of the original decree, they could in a proper case excuse the delay under Section 5 of the Limitation Act. In Ram Singh v. Ramo Bai (A.I.R. 1968 M.P. 220) the Court held that although the date of the decree under O. 20, R. 7 of the Code of Civil Procedure shall be the date of the judgment, yet, where a decree is substantially amended either by way of review or by way of the power of corrections conferred on the Court under Ss. 151, 152 or 153 the party against whom such amendment or correction had been made ought not toe be made to suffer merely on the basis of the wording of O. 20, R. 7 of the Code of Civil Procedure. If the decree is amended or corrected in respect of unsubstantial matters, a party may not get a right of appeal against such unsubstantial amendments or corrections. But, if it is substantially amended, the right of appeal would be from the date of such substantial amendment. Or, at any rate, if a party files an appeal against the amended decree, he can invoke S. 5 of the Limitation Act, and if his attack is against the amendment itself, the Court should extend time in his favour. In Appukuttan v. Gopala Pillai (A.I.R. 1969 Kerala 183) a single judge of that Court held that when a decree is amended under S. 151 or 152 of the Code of Civil Procedure, time does not run from the date of amendment for filing the appeal and that the amendment of a decree does not bring about any change in the date of the decree. But, the learned judge added that it will be a fit case for excusing the delay under S. 5 of the Limitation Act. The learned judge referred to the decision of this Court in Janikamma v. Venkatarajagopala Chirmarao (1944 (1) M.L.J. 384) and Venkatarao v. Sathiraju (A.I.R. 1946 Madras 291=59 L.W. 132). But, the learned judge added that it will be a fit case for excusing the delay under S. 5 of the Limitation Act. The learned judge referred to the decision of this Court in Janikamma v. Venkatarajagopala Chirmarao (1944 (1) M.L.J. 384) and Venkatarao v. Sathiraju (A.I.R. 1946 Madras 291=59 L.W. 132). In Ramesh Prasad v. Union of India (A.I.R. 1973 Calcutta 12) a Division Bench of that Court held that where the petitioner on getting the certified copies of the judgment and decree sought amendment of the decree second time on advice of his advocate and proceeded in good faith and due diligence with the second application and it was only after its dismissal that he filed an application for leave to appeal with an application for condonation of delay, the delay in filing the appeal should be condoned on condition of payment of costs to opposite party. 13. Bearing the above principles in mind, we will proceed to consider the facts of the present case in order to decide whether the delay should be condoned. Before doing so, we will refer to the judgments cited by the respondent herein who appeared as party in person. In Murugesa Mudali v. Jotharam Davay (I.L.R. 22 Madras 478) it was held that in execution of a decree obtained by the defendants against a person in the Court of Small Causes, certain goods were attached, to which the plaintiff preferred a claim. The claim was disallowed and a suit was filed by the plaintiff in the City Civil Court, Madras. He obtained a declaration of title to the goods. Prior to the date of the decree, the goods attached had been sold by the Court of Small Causes and certain third parties had become purchasers thereof. In December, 1987, the plaintiff filed a suit for the recovery of goods or their value as compensation. As the goods were not under the control of the defendants, the plaintiff was not entitled to a decree for their recovery in specie and that his remedy was only for damages. The Court held that the suit was within time as it was governed by Article 49 of Schedule II of the Limitation Act, 1877, in as much as it was for recovery of specific movable property and that the plaintiff was entitled to get the relief or alternative prayer, value of the goods in full. The Court held that the suit was within time as it was governed by Article 49 of Schedule II of the Limitation Act, 1877, in as much as it was for recovery of specific movable property and that the plaintiff was entitled to get the relief or alternative prayer, value of the goods in full. That ruling has no relevance whatever to the facts of the presence case. 14. Our attention is drawn to the judgment of Full Bench in Sadhu Krishna Ayyar v. Kuppan Ayyangar and others (I.L.R. 30 Madras 54). I was held that when a suit is decided exparte, the appellate Court to which an appeal from the decree is preferred under S. 540 of the Code of Civil Procedure, has jurisdiction to reverse the decree of the lower Court on the ground that such Court was wrong in proceeding to decide the suit ex parte and remand the suit for re-hearing. That judgment has no relevance at this stage, as we are concerned only with the petition for condonation of delay. Reliance is placed upon the following passage in the judgement: “Under S. 588(9) of the Code there is an appeal against an order rejecting an application under S. 108, whilst S. 540 provides that an appeal may lie from an original decree passed ex parte. The word ‘may’ is used in “the part of the section which gives a right of appeal from an ex parte decree, whilst the word “shall” occurs in the earlier portion of the section. It is, no doubt, a reasonable view that the appeal given by S. 540 in the case of ex parte decree is not an appeal in all cases as right but an appeal when a party appeals on the merits of the case and not upon the ground that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called on; in other words, that a party who desires to upset an ex parte decree may first apply under S. 108, and if an order is made against him, that he has no right of appeal against the decree under the general enactment contained is S. 540, but only a right of appeal against the order under the special enactment contained in S. 588(9)”. This proposition of law is not at present available to the respondent as we are concerned with the question of condonation. Our attention is drawn to the judgment of the Full Bench in Golab v. Janki Kuer (A.I.R. 1920 Patna 622). In that case, a memo of costs was added to the decree and the Court held that the limitation for the appeal runs from the date of the original decree and not from the date on which the memo of costs was added. That ruling has no relevance to the present case. 15. Reliance is placed upon the judgment in Badvel Chinna Asethu and others v. Vattipalli Kesavayya and others (39 M.L.J. 697). The Court held that where an application under O. 9, R. 13 of the Code of Civil Procedure to set aside an ex parte decree was made to the court of first instance and rejected and the order rejecting the application was not contested by way of appeal from that order, it is not open to the defendant in the appeal against the ex parte decree to object to the decree on any of the grounds mentioned in O. 9, R. 13 of the Code of Civil Procedure. It is also observed that S. 105 of the Civil Procedure Code does not give the defendant a right to reopen the question in appeal in such a case. That ruling will have no bearing at this stage as we are concerned only with the question of condonation of delay in filing the appeal. If the delay is condoned and the appeal is taken on file, the Court will consider all the questions which could be canvassed in the appeal by the appellants therein. 16. Bearing the above principles in mind, we proceed to consider the facts of the present case. As pointed out earlier, the suit was filed against 15 defendants in the first instance. Three of them filed written statements contesting the claim of the plaintiff. The plaintiff chose to withdraw the suit as against those three persons by making an endorsement on 29.1.1983. Later, he gave up defendants 5 to 15 including the said three defendants, viz., 5, 6 and 12. The said fact did bring about a change in the complexion of the suit. The plaintiff chose to withdraw the suit as against those three persons by making an endorsement on 29.1.1983. Later, he gave up defendants 5 to 15 including the said three defendants, viz., 5, 6 and 12. The said fact did bring about a change in the complexion of the suit. In the original plaint relevant allegations were made against all the 15 defendants in so far as trespass and removal of moveables were concerned. In paragraph 14 of the plaint, it was alleged that the defendants deliberately, maliciously and wrongfully committed tresspass into the petition premises leased out to the plaintiff by breaking open the lock without the consent of the plaintiff and without being clothed with an authority of the Court and also committed trespass on the moveables, valuable documents and other belongings fully described in Schedules A to H therein. It was further alleged that the moveables were converted and the properties were taken out of the plaintiffs premises into their own properties, thereby causing irreparable loss to the plaintiff for which the plaintiff claims (a) for recovery of possession of the portion leased out to him, (b) for restoration of the moveables or the value thereof, and (c) for damages suffered by the plaintiff occasioned by the defendants tortious acts. Thus, all the allegations were directed against all the defendants and no distinction was made as between one set of defendants and another. In the prayer made in the plaint, it is only with regard to the first prayer, viz. recovery of possession of the leased portion of the premises it was directed against the defendants 1 to 4. With regard to other prayers, they were directed against all the defendants. When the plaintiff gave up defendants 5 to 15, there was a change in the nature and character of the suit as several of the joint tortious acts were attributed by the plaintiff to all the defendants and no amendment was made in the plaint as to how the other defendants who were retained in the suit were alone liable to answer the claim of the plaintiff. When the complaint in the original plaint is that all the defendants removed the moveables and converted them into their own properties, it is not known how the plaint could be continued as against defendants 1 to 4 only without there being any amendment and an express allegation that it was defendants 1 to 4 who alone had the moveables and converted them into their own. 17. Secondly, the particulars of moveables as set out in schedules B to E of the plaint show that there were files and other documents and books, books of account, books of reference and other such papers. Value has been mentioned in the schedules with regard to each schedule. The plaint does not set out the basis for such valuation. The plaintiff has given evidence as P.W. 1 on 15.3.1983 on the basis of which the decree was passed in his favour. In his evidence, he has not stated even a word about the met hod of valuation of the moveables. Nor has he in his evidence stated as to how the suit was confined to defendants 1 to 4 when the allegations in the plaint were directed against all the 15 defendants. In the evidence also he has used a general expression “defendants” and not confined to defendants 1 to 4. It is also brought to our notice that the suit is filed under S. 6 of the Specific Relief Act. It is argued by learned counsel for the petitioners that the alleged dispossession was on 22.1.1974 and t he suit was presented on 22.7.1974 after a period of 6 months. This aspect of the matter was also not taken notice of by the Court when it passed the ex parte decree. 18. The above aspects of the matter were not taken note of by the Court when it passed the ex parte decree on 15.3.1983. Of course, we are not now deciding the correctness of the decree. But, we are only pointing out that there is a substantial matter which has to be considered in the appeal which is sought to be filed by the petitioners against the said decree. 19. The next relevant circumstance is that in spite of the fact that the plaintiff had prayed for the alternative relief for the value of the moveables that was not granted in the judgment as originally rendered by the Court on 15.3.1983. 19. The next relevant circumstance is that in spite of the fact that the plaintiff had prayed for the alternative relief for the value of the moveables that was not granted in the judgment as originally rendered by the Court on 15.3.1983. We have extracted the relevant part of the judgment which does not make any reference to the value of the moveables. On the other hand, the judgment reads as if the suit was dismissed with regard to all the other prayers except the two reliefs which were granted by the Court. It was only on that basis, the Registry drafted the decree which contain a direction to deliver the moveables in specie and not for payment of the value of the moveables as prayed for by the plaintiff in the alternative. Realising the defect in the decree, the plaintiff moved the Court immediately by filing a memo for rectification of the defect and on a direction by the Court that a petition should be filed, he filed an application as early as on 2.7.1983 for amendment of the decree. But, according to the plaintiff the papers were misplaced by the Registry and they were not traceable for a period of nearly 12 years. The plaintiff was not very keen to get the matter posted before the Court and get orders on the same. He was also inexplicably bidding time and he waited till the beginning of 1995 when he moved the Court for completing the substituted service. In spite of the fact that newspaper publication was effected in 1986, he did not choose to move the Court for getting the service completed by affixure on the last known residence of the Court Notice Board. Hence, by the time service was sought to be completed in 1995 by affixure on the door of the last known residence and the Court Notice Board, the residence of the defendants had changed. Even if that version of the defendants is not accepted by the Court, the fact remains that the Door Number of the building had been changed even as early as 1980 admittedly. In the city of Madras all the door numbers were changed and new door numbers were given in 1980. Consequently, the building which had the Door No. 56/57 was numbered as 218 in 1980 itself. In the city of Madras all the door numbers were changed and new door numbers were given in 1980. Consequently, the building which had the Door No. 56/57 was numbered as 218 in 1980 itself. The plaintiff did not choose to give new door number either in the newspaper publication or in the notices which were issued for affixture on the last known residence or in the Court Notice Board. The endorsement made by the Bailiff in the notice only shows that the notice was affixed on the door of No. 56, Linghi Chetty Street. It does not say that notice was affixed at Door No. 218. No doubt, the plaintiff asserts that the notice was affixed only on the new door number 218 when it was 56 previously. Records are not available before the Court to accept that assertion. But, admittedly, the petitioner was living at 158, Linghi Chetty Street, at that time and the plaintiff did not take care to have the notice issued to that address. Hence, the court cannot proceed on the footing that substituted service was validly effected in the application for amendment of the decree. 20. The next relevant circumstance is that the application for amendment was ordered by the Court on 1.2.1995 as if it is a matter of course. The court overlooked that earlier in 1984. The learned judge for the purpose of determining the value of the moveables had directed notice to the parties. But, that order has been overlooked by the Court, though it is claimed by the plaintiff that he placed a copy of the said order before the Court and drew its attention thereto. Even assuming that it was done, the Court which passed the order of amendment did not think it necessary to have evidence recorded regarding the value of the moveables. On the other hand, the Court proceeded to accept the value mentioned in the plaintiff on the footing that it was an ex parte decree. We have extracted the order of amendment passed on 1.2.1995. The reasoning of the Court is that the decree being an ex parte one, the Court had no opportunity to assess the value of the moveables and therefore, the suit had to be decreed as prayed for. On that footing, the amendment was ordered. We have extracted the order of amendment passed on 1.2.1995. The reasoning of the Court is that the decree being an ex parte one, the Court had no opportunity to assess the value of the moveables and therefore, the suit had to be decreed as prayed for. On that footing, the amendment was ordered. Prima facie the order is not sustainable in as much as the basic principle that there should be evidence for the value of the moveables has been completely ignored by the Court. 21. The amendment granted on 1.2.1995 is one substantially altering the contents of the decree. It is not a formal amendment rectifying any clerical error or accidentally occasioned as contended by the plaintiff. This decree for the value of the moveables passed in the alternative to the decree for direction to deliver the moveables in specie , varies from the decree and directs the defendants to pay the value of the moveables. Thus, the defendants are very much affected and prejudiced by the decree for payment of value of the moveables which has been passed without any evidence therefor. Even if the defendants had received the notice personally in the application for amendment and remained ex parte, it was the duty of the Court to have the evidence of the plaintiff recorded and ascertained the value of the moveables. In as much, as the decree has been substantially altered by the amendment thereof, it gives the right to the defendants to file an appeal. We have no hesitation to hold that in so far as the amendment of the decree is concerned, the starting point of limitation will be the date of amendment, viz., 1.2.1995. Even if for the purpose of Art. 117 of the present Limitation Act it is only the date of decree which is relevant and consequently, the date of decree is the date of the judgment, viz, 15.3.1983. The fact that the decree is amended only on 1.2.1995 will be a sufficient cause for condonation of the delay in filing the appeal. No doubt, the delay subsequent to 1.2.1995 has to be explained by the petitioners. The fact that the decree is amended only on 1.2.1995 will be a sufficient cause for condonation of the delay in filing the appeal. No doubt, the delay subsequent to 1.2.1995 has to be explained by the petitioners. They have referred in their affidavit to the fact that they were advised to take proceedings to set aside the ex parte decree and on the other hand they have stated that they had no knowledge of the fact of the amendment of the decree till 22.12.1995. No doubt, there was an inspection of the records by their counsel on 13.6.1995. But, there is no reason to disbelieve the affidavit filed by the second petitioner that in that inspection the concentration was only on the papers relating to the service of the proceedings and they had no idea whatever that the decree half been amended. We have perused the execution proceedings filed by the plaintiff. There is no reference to the amendment of the decree whatever. No doubt, it is not necessary for the plaintiff to do so and there is no column in the prescribed Form for mentioning the date of the amendment. But, the fact that there is no reference to the amendment of the decree is relevant only for the purpose of showing that the defendants were not aware of the amendment of the decree on 1.2.1995. While the plaintiff cannot be blamed for not mentioning that date in the execution proceeding, it should not be forgotten that the defendants could not have been made aware of the amendment of the decree by mere service of the execution proceeding on them. Hence, we accept the version given by the second petitioner in his affidavit that the petitioners came to know of the amendment only on 22.12.1995 when there was a second inspection of the records by their present counsel. 22. Even if the starting point of limitation is 15.3.1983, the date of the judgment, the facts stated above make out that there is sufficient reason for the delay on the part of the defendants in filing the appeal. The appeal, as such is, not merely against the original judgment and decree, but also against the amended decree. In fact, the appeal challenges the validity and correctness of the amendment ordered by the Court on 1.2.1995. The appeal, as such is, not merely against the original judgment and decree, but also against the amended decree. In fact, the appeal challenges the validity and correctness of the amendment ordered by the Court on 1.2.1995. Whether it is open to the appellants in that appeal to contest the correctness of the decree passed on 15.3.1983 is a matter to be decided at the hearing of the appeal. We are now concerned only with the question of condonation of delay, It is only for the purpose of showing that there is sufficient explanation for the delay on the part of the defendants we have referred to the above circumstances. It should not be understood as having decided any point that arises for consideration in the appeal. We are convinced that the petitioners have got a case to be considered in the appeal and interest of justice requires that the delay should be condoned for the purpose of enabling the petitioners to put forward their case in the appeal in order to be considered by the Court. The test prescribed by the Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji (A.I.R. 1987 S.C. 1353 = 100 L.W. 676) is that the approach should be justice oriented and merit oriented and it is satisfied in this case. 23. However, it cannot be forgotten that the petitioners had been negligent in not contesting the suit when summons had been served therein on their father. It cannot be said and it has not been said that their father was not entitled to receive the notice on their behalf at that time. Hence, the petitioners must be made to pay costs as a condition for condonation of inordinate delay. We direct the petitioners to pay a sum of Rs. 10,000/- to the plaintiff/respondent by way of costs as condition precedent for condonation of delay. The said amount shall be paid on or before 12.2.1996. The petition will be dismissed if the amount is not paid. Post on 13.2.1996. ORDER (13-2-1996): This petition having been posted this day for further hearing pursuant to the order of this Court dated 8.2.1996 and made herein and in the presence of the aforesaid Advocates, the Court made the following Order:— “As per our order dated 8.2.1996, the amount of costs has been paid to the respondent Hence, the delay is condoned. ORDER (13-2-1996): This petition having been posted this day for further hearing pursuant to the order of this Court dated 8.2.1996 and made herein and in the presence of the aforesaid Advocates, the Court made the following Order:— “As per our order dated 8.2.1996, the amount of costs has been paid to the respondent Hence, the delay is condoned. Number the appeal and post along with other cases on 15.2.1996”.