IMPORTANT POINTS:
• Guidelines issued by the Government of India, pursuant to the Hague Convention, no declaration of deemed service could be made where the certificate evidencing due service has not been received back, unless the court is satisfied with the aforesaid conditions stipulated under Article 15 of the Hague Convention-The deemed service of summons, is legally unsustainable.
• The summons was not properly addressed and duly sent to the appellant and thereby she could not appear before the court when the case was called on for hearing. In the instant case, since the summons was not duly sent, there was no circumstance to declare deemed service also.

Harilal, J.

1. This appeal has been filed challenging the common order, whereby the Principal Sub court, Kottayam dismissed IA Nos.641 and 642/2015 in OS 218/2009. O.S.No.218/2009 was a suit for partition filed by respondents 1 to 5 herein against the appellant and others. IA 641/2015 is an application filed under Order 9 Rule 13 of the CPC to set aside the ex-parte decree and judgment passed against the appellant and IA 642/2015 was filed to condone the delay of 51 days in filing the application to set aside the ex-parte decree and judgment.

2. The appellant is an Indian citizen, permanently residing and working in USA. She is the first defendant in O.S.No.218/2009 of the Court of Principal Sub Judge, Kottayam. The said suit was filed by the respondents 1 to 5, as the plaintiffs, seeking a decree for partition of the plaint schedule property. The appellant was set ex parte and an ex parte decree granting partition of the plaint schedule property was passed. According to the appellant, the plaint schedule property is not partible, as she has absolute title and possession over the plaint schedule property in exclusion of the plaintiffs and other defendants. But she has not received the summons in the said suit, as the same was not duly served to her in accordance with the Rules. The procedure adopted by the courts below, to declare that the summons had been duly served on the appellant, is illegal and perverse. The ex parte decree was passed on 26.09.2011; but she came to know about passing of the ex parte decree against her only on 19.01.2015, when the ameen went to the plaint schedule property in execution of the final decree passed in the suit. Since she was residing in USA, there occurred some delay in obtaining a power of attorney of the appellant. There is a delay of 51 days in filing the application to set aside the ex parte decree. There is no negligence or laches in causing the said delay on her part. Since the summons was not duly served to her in accordance with the Rules, the ex parte decree is liable to be set aside after condoning the delay. Hence, she filed I.A.No.641/2015 to set aside the ex parte decree and I.A.No.642/2015 to condone the delay of 51 days in filing I.A.No.641/2015. Both the applications were filed by the power of attorney, for and on behalf of the appellant.

3. The respondents resisted the prayer for setting aside the ex parte decree contending that the appellant had knowledge about the ex parte decree passed against her before 19.01.2015, as she had come to India several times, reached her native place and stayed along with her close relatives. There is unexplained inordinate delay in filing the application to set aside the ex-parte decree. So also, the summons was properly addressed and duly sent to the appellant and the same is evident from the records. Therefore, the declaration, that the summons has been duly served to the appellant, is correct as well as justifiable. They prayed for dismissing both the applications.

4. Heard Shri. Jacob Alex, the learned counsel appearing for the appellant and Shri. Abdul Jaleel, the learned counsel for the respondent.

5. The learned counsel appearing for the appellant advanced arguments exhaustively, attacking the declaration of the deemed service of summons, made by the court below. According to the learned counsel, the summons was not properly addressed or duly sent, in adherence to the comprehensive guidelines, for the transmission of notices/summons/judicial documents, framed and issued by the Ministry of Law and Justice, Union of India, pursuant to the Hague Convention, 1965, on the service in foreign countries, on Judicial and extra-judicial matters, on civil or commercial matters and insisted by the High Court of Kerala, through various OMs. The learned counsel drew our attention to the various Articles in the Resolution passed by the Hague Convention, 1965 and various Government Orders and OMs issued by the Ministry of Law and Justice, Union