Annie John ORDER
Annie John, J.
1. The petitioners are the defendants 3 to 5 and 7 and 8 and the respondent is the plaintiff in the suit. The suit was filed for the realisation of Rs. 9,01,423/- with interest at the rate of 12% per annum. The plaintiff claimed amount on the basis of a dishonoured cheque. The petitioners are the Trustee of the first defendant Trust. Even though summons was served to the defendants, they failed to appear before court. On 09.06.2008, the learned Sub Judge, Neyyattinkara as per Exts. P1 and P2 passed an ex parte decree allowing the plaintiff to realise Rs. 9,01,423/- at the rate of 12% per annum from the date of suit till realisation with costs and a prohibitory injunction against the defendants from alienating the plaint schedule property till the realisation of the decree amount. The respondent/plaintiff filed E.P. No. 59 of 2014 in O.S. No. 50 of 2008 for realising the decree amount by attachment and sale of plaint schedule property. On 07.07.2008, the second defendant filed I.A. No. 1118 of 2008 to set aside the ex parte decree. Even though notice has been ordered, no steps has been taken and accordingly, the IA was dismissed. The petitioners filed I.A. No. 1627 of 2009 to restore I.A. No. 1118 of 2018, which was dismissed for default on 26.11.2008. The petitioners have also filed I.A. No. 2139 of 2010 for condoning the delay of 297 days in filing I.A. No. 1627 of 2009. On 05.01.2011, the learned Sub Judge dismissed both the IAs by Ext. P6 order. Hence this Original Petition.
2. The learned counsel for the petitioners submits that his Advocate Clerk has wrongly noted the posting date as 29.06.2008 and therefore, he could not take steps to serve notice to the respondent. The learned Sub Judge ought to have found that the petitioners filed I.A. No. 1118 of 2008 under Order IX Rule 13 CPC, which was dismissed for default. The petitioners opportunity to contest the suit was axed down which is unjustifiable. Order IX Rule 13 of CPC reads thus:
"13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an Order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree."
It is evident from the above that an ex-parte decree against a defendant can be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defe........