IMPORTANT POINT
The main legal point established in the judgment is the significance of proper service of summons and the defendant's right to set aside an ex-parte decree by presenting a satisfactory reason in court or proving non-service of summons.

JUDGMENT

1. The present Appeal is preferred by the appellant aggrieved by the order dtd. 23/10/2017 passed in I.A.No.1517 of 2011 in O.S No.173 of 2010 on the file of I Additional District Judge, Nellore (for short "the trial Court").

2. The impugned application has been filed by the appellant/defendant/petitioner before the trial Court under Order IX Rule 13 CPC seeking to set aside the ex parte decree passed against him on 26/11/2010 and permit him to contest the matter and for costs.

3. Originally the suit in O.S No.173 of 2010 was filed by the respondent/plaintiff for grant of specific performance of agreement of sale dtd. 11/12/1995 alleged to have been executed by the appellant/defendant and thereupon in the said suit the respondent/plaintiff obtained ex parte decree vide judgment and decree dtd. 26/11/2010 by the trial Court. It is stated that the appellant/defendant was not served with summons in the above suit or in the I.A or in the E.P and further he never resided in Flat No.S-A, 2 2nd floor, Sri Rajagopalapuram, Dagramitta, Nellore. The appellant/ defendant left Nellore long back and has been residing in Chennai. It is further stated that the appellant/defendant filed I.P No.3 of 2001 in January 2001 and he was taken into illegal custody and was threatened to kill in encounter and forcibly obtained a sale deed on 22/1/2001 for the period of 6 years for the first floor in the suit schedule property. The respondent/plaintiff obtained his signatures on white papers and stamped papers. Thereafter, Union Bank of India filed O.A No.23/4/2002 against the appellant/defendant before the Debt Recovery Tribunal, Visakhapatnam, and in that O.A., One Lakku Krishna Reddy paid a sum of Rs.50.00 Lakhs to the Union Bank of India towards his debt. Thus the appellant sold the suit schedule property in favour of Lakku Krishna Reddy for a consideration of Rs.48, 34, 000.00 and put him in possession. The respondent/plaintiff with the connivance of the Process Server got a false and forged endorsement and stated that the said Process Server never visited him and never signed on the summons relating to the above said suit. The respondent/plaintiff obtained ex parte decree by playing fraud on him. Hence, the appellant/defendant filed the impugned I.A.No1571 of 2011 under Order IX rule 13 CPC to set aside the ex parte decree.

4. The respondent/plaintiff filed counter denying all the allegations made in the petition. It is further stated that as submitted by the appellant/petitioner that he was not resident of Rajagopalapuram, Dargamitta, Nellore and the suit summons were not served on him are false. The petitioner has created the registered sale deed dtd. 27/12/2010 in favour of Lakku Krishna Reddy covers the property that are already sold by the petitioner in favour of this respondent. Thus the sale deed is bogus one and not supported by consideration. It is mainly contended that the petitioner has no locus standi to file application. Hence, prayed to dismiss the petition.

5. During the course of trial, on behalf of the petitioner, PWs.1 and 2 were examined and Ex.A1 to Ex.A6 were marked. On behalf of respondent, RWs.1 and 2 were examined and Ex.B1 to Ex.B7 were marked.

6. Basing on the above pleadings, the trial Court framed the following points for consideration:

1. Whether there is due service of summons on the defendant?

2. Whether the petition is maintainable?

7. After careful consideration of the material and on considering the oral and documentary evidence, the trial Court has dismissed the said application on the ground that the petitioner has not come to the Court with clean hands though the document prima facie and glaringly appear the service of summons on the defendant and also held that the petitioner failed to substantiate his pleas in the affidavit/petition by any cogent evidence. Aggrieved by the same, the present Civil Miscellaneous Appeal came to be filed.

8. Heard Sri P. Rajasekhar, learned counsel appearing for the appel