Siddha Gounder v. Muthusamy — 1997 DIGILAW 935 (MAD)

Judgment :- 1. The petitioner filed the suit O.S. No. 274 of 1990 on the file of the Sub-Court Bhavani for specific performance of the suit agreement. The first respondent is the son of the second respondent. The second respondent was set ex parte. Since the first respondent was a minor, Court Guardian was appointed. As soon as the first respondent attained majority, the petitioner filed an application I.A. No. 609 of 1991 for the discharge of the Court Guardian. The 1st respondent remained ex parte and the application was allowed on 23.9.1991. Thereafter the sale deed was executed on 28.10.1992 pursuant to the order in E.P. No. 63 of 1992. In the E.P. also both the respondents refused to receive summons and they were set ex parte. While so, the first respondent filed the application I.A. No. 1372 of 1994 on 9.8.94 for condoning the delay of nine days in filing the application for setting aside the ex parte decree on the ground that he came to know about the ex parte decree only, on 11.7.1994. The said application was opposed by the petitioner herein on the ground that the first respondent had the knowledge about the ex parte decree even earlier and moreover in the E.P., the specific endorsement of the Amin is that both the respondents had refused to receive the summons. The refusal would amount to effective service. After considering the arguments of the counsel, the lower Court has allowed the application by order dated 1.8.1996. As against the said order, the present revision has been filed. 2. The first respondent in his affidavit filed in support of the application I.A. No. 1372 of 1994 had stated that the petitioner herein filed a suit O.S. No. 325 of 1994 in which his counsel took notice on 30.6.1994 and undertook to file vakalat. Thereafter, his counsel informed him about the suit. On 11.7.1994 his counsel filed vakalat and on getting a copy of the plaint, the first respondent came to know about the ex parte decree in O.S. No. 274 of 1990. Since there is a delay of nine days in filing the application for setting aside the ex parte decree from the date of the knowledge, the petition has been filed. 3. Since there is a delay of nine days in filing the application for setting aside the ex parte decree from the date of the knowledge, the petition has been filed. 3. The lower Court has condoned the deley mainly on the ground that the first respondent had not been served with the summons in the suit. The ex parte decree was passed in the year 1991. The second respondent-the father of the first respondent remained ex parte. Thereafter, the petitioner earnestly took steps for the appointment of the Court guardian for the then minor-the first respondent, in order to protect his interest. The Court guardian was appointed and subsequently the application was filed for the discharge of the Court guardian since the first respondent attained majority. In the said application notice was ordered. The Court Guardian made an endorsement ‘No objection’ on 26.8.1991. The notice sent to the first respondent returned with an endorsement that he had left the place. Hence fresh notice by affixture and by tom tom was ordered. The same was complied on 23.9.91 and the first respondent was s et ex parte. Thereafter the application was allowed. 4. However, the petitioner filed E.P. No. 63 of 1992 to execute the ex parte decree for Specific Performance. In the E.P. notice was ordered. The counsel for the petitioner produced the certified copy of the notice and endorsement in the E.P.63/92 wherein it is stated as follows: [Tamil matter omitted — Ed.] Though the year of the E.P. and the year of the suit has been wrongly mentioned, in the certified copy the E.P. is of the year 1992 and the suit is of the year 1990. From the above endorsement, it is clear, that in August 1992 itself the first respondent as well as the second respondent were aware about the ex parte decree in the suit. But still they have not taken any steps to set aside the ex parte decree. In a recent judgment reported in Bhabla Devi v. Premanand Yadav ( AIR 1997 SC 1919 ) it is observed as follows: “The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served notice but since she did not contest the suit, ex parte decree was granted. The petitioner was served notice but since she did not contest the suit, ex parte decree was granted. Subsequently, the petitioner filed an application under Order 9 Rule 13, C.P.C. seeking setting aside the ex parte decree. Therein, her specific case was that she was not residing at Garhia Village and therefore, the notice could not be deemed to have been served on her. The endorsement is not correct. The question was gone into by the Courts below after recording the evidence of one Laxman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Phabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the notice . When the process server had gone to serve it on her personally on April 9, 1984 to the village and also on April 2, 1984 when the registered card acknowledgement was sent, she refused acknowledge it. Under those circumstances the Courts below have concluded and the High Court has recorded as under: “Apart from the aforementioned two modes for service of notice, as I have already noticed, there was yet another mode by may of gazette publication. An attempt has been made on behalf of the appellant to say that she being illeterate lady could not learn about the gazette publication.” This is a finding of fact on appreciation of the evidence. Therefore it is clear that petitioner had refised to accept the notice, subsequently she was rightly set ex parte. The learned counsel for the petitioners seeks to contest the case on merits. We cannot go into the merits since the appeal was not subject matter in any of the appeals filed cither under section 96 or 100 C.P.C.” The Supreme Court has held that the refusal of summons will amount to the knowledge of the proceedings. Hence the first respondent has the knowledge about the ex parte decree as early as August, 1992. There is no explanation for the long delay in filing the application nearly two years. 5. Hence the first respondent has the knowledge about the ex parte decree as early as August, 1992. There is no explanation for the long delay in filing the application nearly two years. 5. Even if the contention of the first respondent is to be accepted that he had knowledge only on 11.7.1994, and there is no delay as the petition for setting aside the ex parte decree was filed on 9.8.1994 within thirty days from the date of the knowledge, how this delay of nine days has been calculated is not clear. The conduct of the first respondent clearly reveals that to show some bona fides as if there is some delay and he has sufficient cause for the delay, the petition has been filed. Since it has been found that the first respondent had knowledge of the proceedings in August, 1992, there is no explanation for the inordinate delay of two years in filling the petition for setting aside the ex parte decree. Hence the order of the Court below cannot be sustained. Accordingly the order of the Court below is set aside and the Civil Revision Petition is allowed. No order is necessary in the C.M.P. and the same is closed.