IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19341 of 2005(C)
1. PARAMMAL IBRAHIM,
... Petitioner
Vs
1. KARUNGADAN YANU HAMZA,
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.T.KRISHNAN UNNI (SR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/07/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.19341 of 2005
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Dated this the 22nd July, 2008.
J U D G M E N T
Petitioner is the defendant and respondent the plaintiff
in O.S.No.17 of 1998, on the file of Munsiff Court, Tirur. The suit was
decreed ex-parte on 19.2.1998. Petitioner filed I.A.No.1283 of 2001
through his power of attorney holder to set aside the ex parte decree
and I.A.No.1283 of 2001 to condone the delay in filing the petition to
set aside ex parte decree in time. Under Ext.P1 order, both the
petitions were dismissed. Petitioner challenged the order before Sub
Court, Tirur, in C.M.A.No.20 of 2004. Learned Sub Judge under Ext.P2
order dismissed the appeal confirming Ext.P1 order. This petition is
filed under Article 227 of the Constitution of India challenging Ext.P2
order.
2. The learned counsel appearing for the petitioner and
learned counsel appearing for respondent were heard.
3. The argument of the learned counsel appearing for
the petitioner is that petitioner did not receive any summons and he
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2
was not aware of the suit or the decree and was working in Dubai for
the two years prior to the date of filing of the petition, and
immediately on coming to know about the decree, he filed the
petitions, and, therefore, ex parte decree should have been set aside,
after condoning the delay. The learned counsel argued that in the
interest of justice, an opportunity is to be granted to the petitioner to
have a decision on merits.
4. The learned counsel appearing for the respondent
pointed out that subsequent to the date of the decree, an execution
petition was filed and in the execution petition, respondent proposed
to appear through Advocate Moideen Kutty on 20.1.2000, and,
therefore, even if petitioner was not aware of the decree earlier, at
least on 20.1.2000, he is presumed to have knowledge about the
decree and petitions were filed only in 2001, and in such
circumstances, there is no reason to interfere with Exts.P1 and P2
orders.
5. Courts below on verifying the records found that
summons was served on the petitioner on 19.1.1998 personally.
Though it was contended that summons was not served on the
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petitioner, petitioner did not examine the process server to show that
it was not personally served on him. Even though it was contended
that petitioner was in Dubai, no evidence was produced to show that
on 19.1.1998, he was not in India or was at Dubai. In such
circumstances, courts below were justified in holding that summons
was served on petitioner personally. If that be so, petitioner cannot
be allowed to contend that he was not aware of the suit till he filed
the petition to set aside ex parte decree. I do not find any illegality or
irregularity in Exts.P1 and P2 orders warranting interference. Petition
is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.