O.P. (C) No. 602 of 2010 (O). Case: V. divakaran, S/o. Velayudhan Vs Thanka, W/o. Vasu and Ors.. High Court of Kerala (India)
| Case Number | O.P. (C) No. 602 of 2010 (O) |
| Counsel | For Appellant: No Appearance |
| Judges | Thomas P. Joseph, J. |
| Issue | Civil Procedure Code (CPC) - Order 5, Rules 13 and 15 |
| Judgement Date | November 09, 2010 |
| Court | High Court of Kerala (India) |
Judgment:
Thomas P. Joseph, J., (At Ernakulam)
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Defendant No. 1 in O.S. No. 205 of 1986 of the court of learned Sub Judge, Palakkad is the petitioner before me challenging dismissal of an application to set aside the ex parte decree and to condone the delay in filing that application. It is not disputed that a preliminary decree was passed as early as on 13.10.1986 with petitioner-defendant No. 1 remaining ex parte. Pursuant to the preliminary decree there was an application to pass a final decree in which proceeding Advocate Commissioner inspected the property. Petitioner claims to have learnt about the preliminary decree only when Advocate Commissioner inspected the property on 03.06.1988 and without losing time he filed the applications - I.A. Nos. 1524 and 1525 of 1988 to set aside the ex parte decree and condone the delay claiming that he was not served with summons in the preliminary decree proceeding Applications were opposed by the contesting respondents. Learned Sub Judge observed that records do not reveal that when actually petitioner was served in the preliminary decree proceeding. However observing that there was sufficient service on petitioner through his wife the applications were dismissed. That has been confirmed by the learned Additional District Judge in C.M. Appeal Nos. 17 and 18 of 1989 which petitioner challenged in CRP Nos. 2597 and 2544 of 1991. Those revisions were dismissed on 13.03.2006 holding that in view of amendment to the Code of Code of Civil Procedure in the year 2002 revision petitions are not maintainable. Thereafter on 28.06.2010 petitioner has filed this Original Petition challenging the impugned judgment in the C.M. Appeals and common order on I.A. Nos. 1524 and 1525 of 1988. Learned Counsel contends that there was no proper service on petitioner in the preliminary decree proceeding and service of summons if any on the wife of petitioner is not in compliance with Rule 15 Order v of the Code of Civil Procedure (for short, "the Code"). If that be so courts below were wrong in holding that there was proper service of summons on the petitioner, it is argued.
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True, that under Rule 15 of Order v of the Code service on an adult member of the family residing with the defendant is contemplated only when the defendant is absent from his residence at the time service of the summons is sought to be effected on him at his residence and there is no likelihood of his being found at his residence within a...
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