1996 INSC 1343
                                                     C. K. Lokesh

                                                           Vs

                                              P. E. Panduranga Naidu

                                         Civil Appeal No. 13086 of 1996

                                      (K. Ramaswamy, G. B. Pattanaik JJ)

                                                      20.09.1996

                                                        ORDER

1. Leave granted.

2. We have heard learned counsel on both sides.

3. The appellant is defendant in OS No. 288 of 1984 on the file of the District Munsif Court,
Cheyyar. The appellant was set ex parte on 30-3-1985. The respondent filed a suit for declaration of
his title and for injunction restraining the appellant from interferring 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 CPC 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 was he 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."

4. 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.

5. It is contended by Shri 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 20-A, 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 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,
though 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.
6. 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 28-
10-1996 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.