K. Gopakumar, Thazhaki Veedu vs Preetha, Power of Attorney Holder

Thomas P. Joseph, J.—Plaintiff in O.S. No. 316 of 2008 of the Court of learned Sub Judge, Neyyattinkara is the Petitioner before me aggrieved by the order passed by the learned Sub Judge to set aside the ex parte decree. The suit is for money based on a demand promissory note. The Court passed an ex parte decree against husband of Respondent, claimed to be his power of attorney. That ex parte decree was later set aside on the application of Defendant appearing through his power of attorney, the Respondent. The said order is under challenge.

Learned Counsel has contended that endorsement made by the process server when he attempted to serve summons and the report of Ameen while attaching the property of the Defendant would indicate that Respondent, power of attorney holder of the Defendant had knowledge about pendancy of the suit. In the facts and circumstances, court below was not justified in setting aside the ex parte decree.

It is true that in the report of process server on the summons it is stated that the process server learned from the wife of Defendant and neighbours that Defendant is abroad and hence summons could not be served. The summons was returned. The report of the Ameen in connection with attachment of property does not refer to the wife of Defendant but only says that attachment was made in the presence of the relatives of Defendant.

It is not disputed that there was no fresh attempt to serve summons on the Defendant directly or by serving it on any adult member of his family residing with him. On the other hand summons was served by substituted service under Order v. Rule 20 of the CPC (for short, "the Code"). It is also not disputed that during the relevant time Defendant was working abroad. But, the paper publication was made in a vernacular daily (Kerala Kaumudi) dated 04.10.2009. Following that, the Defendant was set ex parte on 07.10.2009. According to the Respondent, neither herself nor Defendant had any information about pendancy of the suit.

Learned Munsiff found that having regard to the facts and circumstances of the case it cannot be said that there was proper service of summons on the Defendant and in the circumstance held that the ex parte decree is liable to be set aside. Having heard learned Counsel and gone through the materials placed before me I am not inclined to think that interference is required u/s 115 of the Code. But the grievance of Petitioner that the case may be delayed requires consideration. Hence learned Sub Judge, Neyyattinkara is directed to expedite trial and disposal of the case giving it top priority bearing in mind that the suit is of the year, 2008.

This civil revision is disposed of with the above direction.