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PETITIONER: C.K. LOKESH

       Vs.

RESPONDENT: P.E. PANDURANGA NAIDU

DATE OF JUDGMENT:       20/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The appellant  is defendant  in O.S.  No. 288/84 on the file of  the District  Munsif Court,  Cheyyar. The appellant was set  ex-parte on  March 30, 1985. The respondent filed a suit  for  declaration  of  his  title  and  for  injunction restraining the   appellant  from interfering  with the suit property, i.e.,  the land  to the  extent of  2 acres and 30 cents. It is admitted that personal service was not effected on the  appellant.  It  would  appear  that  the  Court  has directed to  effect the substitute service by publication in the newspaper  but that also did not reach the appellant. On becoming aware of the ex-parte decree and order in 1990, the appellant filed  an application  under  Order  9,  Rule  13, C.P.C. within  30 days from the date of his knowledge to set aside the  decree and  order. He  filed an application under Section 5  of the  Limitation Act  to condone the delay. The District Judge condoned the delay holding that :      "I uphold  the submissions  of  the      petitioner that  the petitioner had      no knowledge of the case nor he was      aware of  the pending  case,    and      therefore, he is entitled to prefer      this petition  within 30  days from      the date  of knowledge.  Hence  the      petition  is allowed."      Against the aforesaid order, the respondent carried the matter in  revision. The  learned single  Judge allowed  the petition setting  aside the  order passed  by  the  District Judge. Thus, this appeal by special leave.      It is contended by Sri Sampath, learned counsel for the respondent, that  the respondent  had taken  all  the  steps available under  Order 5  CPC including of effecting service through substitute  service under  Rule 20A,  Order  5  CPC. Therefore, the  Court was  right in setting the appellant ex parte and  passing the ex-parte decree. The learned District Judge after going through the entire material on record came to the  above conclusion  that the  appellant had  not  been served with  a notice  and, therefore,   he  was entitled to

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file the  application under  Article 123  of the Schedule of Limitation Act, which is 30 days from the date of knowledge. Accordingly, the  application  came  to  be  filed,  through belated by 2015 days. Under these circumstances, the learned District Judge  was right  in holding that the appellant had filed the  application to  set  aside  the  ex-parte  appeal within 30  days from  the date  of knowledge. The High Court was clearly in error in interfering with the order passed by the District Judge.      The appeal  is accordingly  allowed. The  order of  the High Court  is set  aside and  that of  the  District  Judge stands confirmed. The appellant is directed to appear before the  District Judge on 28th October, 1996 and he should also file a  written statement.  The learned  District  Judge  is directed  to   dispose  of  the  suit  as  expeditiously  as possible. No costs.