The petitioner filed O.S.No.896 of 2000 in the Court of the Principal Junior Civil Judge, Vijayawada, against the respondent, for the relief of specific performance of an agreement of sale. The respondent was set ex parte, and thereafter, an ex parte decree was passed, on 07.06.2001. The respondent filed I.A.No.1670 of 2003, under Order IX Rule 13 C.P.C., with a prayer to set aside the ex parte decree. The trial Court dismissed the I.A., through order, dated 05.04.2004. The respondent filed C.M.A.No.67 of 2004 in the Court of I Additional Senior Civil Judge, Vijayawada. The appeal was allowed, on 30.09.2005. The order of the Appellate Court is challenged in this C.R.P.

Sri C.B.Ram Mohan Reddy, learned counsel appearing for the petitioner, submits that the lower Appellate Court has gone into the validity of the order, through which substituted service was permitted, and that the same is beyond the scope of the proceedings before it. He contends that the summons in the suit were sent to the same address, as furnished in the agreement of sale, through which correspondence was undertaken, and it was only on being satisfied that the respondent avoided to receive the summons, the trial Court permitted substituted service. He submits that the decree was executed, and setting aside of the same, at this stage, will lead to several complications.

Sri O.Manohar Reddy, learned counsel for the respondent, on the other hand, submits that the endorsement, on the summons sent to the respondent, was that the addressee vacated the premises and the only alternative for the trial Court was to insist upon the petitioner herein to furnish the correct address of the respondent. He contends that the circumstances, under which the substituted service was ordered, are very much germane to an application filed under Order IX Rule 13 C.P.C.

In the suit filed by the petitioner against the respondent, summons were sent through registered post to the address - Door No.1090634/B, Vidyanagar, Hyderabad. Thereafter, the summons were sent through process server. He went to the addressed premises. On the information received by him, he endorsed that the respondent vacated the premises. The only step to be taken on the basis of this endorsement was to insist upon the petitioner to furnish the correct address. The trial Court did not take any such steps. On the other hand, the petitioner filed I.A.No.3273 of 2000 under Order V Rule 20

C.P.C. The trial Court allowed the I.A., with an order of three words "Heard and allowed".

The substituted service effected by the petitioner did not evoke any response. This naturally led to the respondent being set ex parte and it was followed by an ex parte decree. In execution of the ex parte decree, a sale deed is said to have been executed in favour of the petitioner.

Soon after he came to know about the ex parte decree, the respondent filed the I.A.No.1670 of 2003 under Order IX Rule 13 C.P.C. Though the trial Court took note of the facts, referred to above, it dismissed the I.A., by resorting to discussion of factors, which are outside the scope of the I.A. The endorsement made by the process server, on the notice sent to the respondent, was taken note of. However, the trial Court doubted the correctness of that endorsement. The relevant observation reads as under:

"...The process of service through out from the date of giving notice till date of the last stage of the execution proceedings and present stage of these proceedings the address of the petitioner was given the same. It is not the case of the petitioner that he was not resident of that address or that she vacated the premises some other address. Even according to the sale deeds filed by the petitioner marked as Exs.A.1 to A.7, the address of the petitioner was shown in the sale deed, as given in the plaint and other proceedings. The sale deeds are, dated 30.11.2000. Therefore, the correctness of the endorsement of the process server itself is in serious di