Point of Law : Rule 15 of Order V of Code allows service of summons on an adult member of defendant's family, who is residing in same house, if there is no likelihood of his being found at residence within a reasonable time. In order to resort Rule 15, it is mandatory that defendant and such adult member are residing at same address.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. An appeal under Section 104 read with Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908.

2. The respondent filed O.S. No. 118 of 2017 before the I Additional Sub-Court, Kozhikode against the appellant for recovery of an amount of Rs. 90 lakhs along with interest. Service of summons in the suit on the appellant was effected through substituted service. Since the appellant failed to appear before the Court, he was set ex-parte. After recording evidence on the side of the respondent, the suit was decreed on 09.03.2018.

3. The respondent filed an execution petition and on getting information regarding the execution proceedings, the appellant approached the Sub-Court by filing I.A. No. 1325 of 2019 and I.A. No. 1326 of 2019 with a prayer to condone the delay of 432 days and set aside the ex-parte decree dated 09.03.2018. The Sub-Court, after hearing both sides, dismissed the applications as per a common order dated 02.08.2019. Feeling aggrieved thereof, the appellant has preferred this appeal.

4. On 26.08.2019, this Court stayed the proceedings in the execution petition for a period of one month and directed notice to the respondent. The order of stay has been extended from time to time and is still in force. On 3.12.2021 during the course of arguments this Court passed a query whether the respondent is an income tax assessee. The learned Counsel for the respondent, on instructions from the respondent, submitted that the respondent is not an income tax assessee.

5. Heard Advocate Sri. P.B. Krishnan on behalf of the appellant and learned Advocate Sri. T.G. Rajendran for the respondent.

6. The learned counsel appearing for the appellant would submit that the admitted position has been that the appellant was abroad during the relevant period and the summons was served only through substituted service. The learned counsel would contend that while effecting substituted service, the provisions of Order V, Rule 20 of the Code were not complied with and that by such service of summons, there was no possibility for the appellant to get any information regarding the proceedings in the suit. The counsel accordingly submits that there was sufficient reason to set aside the ex-parte decree and also to condone the delay even in the absence of any evidence.

7. The learned counsel appearing for the respondent, per contra, would contend that when the process server went to the house of the appellant for serving summons, it was his mother, who attested the factual report that he was abroad and that implies that the appellant did get information regarding the suit. The learned counsel further would contend that affixture was effected at the house where the appellant has been residing permanently and that the publication of the notice in the newspaper sufficiently has satisfied the requirement of Order V, Rule 20 of the Code. When the process server went to the house of the appellant for the affixture, the mother of the appellant purposefully avoided attesting the fact of affixture, which also would indicate that the appellant had every knowledge regarding the proceedings in the suit. The learned counsel further would contend that in the absence of any evidence, the delay is not liable to be condoned and the learned Sub Judge rightly had dismissed the application.

8. From the certified copy of the report regarding service on the appellant the notice issued on an application under Order XXXIII, Rule 5 of the Code filed in the suit, which has been placed on record by the learned counsel for the appellant, it is seen that the mother of the appellant had attested the endorsement on the same. It was she who informed the process server that the appellant was working abroad. It was after that the court passed an order for substituted service. The learned counsel for the appellant submitted that there was no valid affixture and the newspaper ‘Pradeepam’ in which the summons was published has no circulation in Koduvally area,