IMPORTANT POINT
The court established that improper service of summons, particularly when the defendant is expected to return shortly, invalidates an ex parte decree, necessitating its setting aside.

JUDGMENT :

Harisankar V. Menon, J.

This first appeal is filed under Order XLIII Rule (1)(d) read with Section 104 of the Code of Civil Procedure (for short, the ‘Code’), against the order dated 31.10.2018 in I.A.No.3909 of 2015 in O.S.No.295 of 2012 of the IInd Additional Sub Court, Ernakulam. By this order, an application filed by the appellant herein, who was the defendant in the suit, for setting aside an ex parte decree dated 30.06.2012 exercising the powers under Order IX Rule 13 of the Code was dismissed.

2. The appellant was the defendant in O.S No.295 of 2012 referred above. This suit was filed by the 1st respondent herein, for realization of Rs. 25 lakhs from the appellant-defendant; a declaration to the effect that document No.666 of 2006 of SRO, Ernakulam is a sham one, not binding on the plaintiff and also for a permanent prohibitory injunction restraining the appellant-defendant from trespassing into the plaint scheduled properties. The appellant-defendant was set ex parte by the trial court on account of which the suit was decreed on 30.06.2012, setting aside document No.666 of 2006 of SRO, Ernakulam; restraining the appellant-defendant by a permanent prohibitory injunction as prayed for and also permitting the respondent-plaintiff to recover Rs.25 lakhs with interest as prayed for. As the above decree was an ex parte one, the appellant-defendant presented I.A.No.3909 of 2015 in O.S.No.295 of 2015 under Order IX Rule 13 of the Code for setting aside the ex parte decree. In this application, it was contended that the summons was not duly served on the appellant-defendant, on account of which, he could not appear before the trial court. It was pointed out before the trial court that the service of summons was allegedly carried out by service on an adult member of the defendant’s family without there being a positive order to that effect by the trial court. Reliance was also placed on the judgment of this Court in Arundas v. Priji [2017 (5) KHC 693] to contend that such service of summons on an adult member of the defendant’s family without an order from the court for such type of service, is illegal. However, the trial court rejected the application under Order IX Rule 13 of the Code by its order dated 31.10.2018. Though a review application is filed under Order XLVII Rule 1 of the Code, the same is also rejected by the trial court, by its order dated 24.06.2019.

3. The appellant-defendant has filed the present appeal against the order dated 31.10.2018 of the IInd Additional Sub Court, Ernakulam, in I.A.No.3909 of 2015 in O.S No.295 of 2012.

4. Before this Court also the appellant-defendant relied on the judgment in Arundas [2017 (5) KHC 693]. However, a Division Bench of this Court, doubted the correctness of the dictum laid down in Arundas [2017 (5) KHC 693] by an order dated 16.03.2020 and referred this appeal for consideration by a Full Bench.

5. This appeal was thereafter posted for consideration by a Full Bench pursuant to the orders of the Hon’ble Chief Justice. The Full Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, by its judgment dated 21.6.2022 found that, for the Process Server to effect service of summons under Order V Rule 15 of the Code on any adult member of the defendant’s family residing with him, no specific order from the court is required and that the only requirement was that the Process Server has to enter fully and exactly the manner in which the process was served and also that on enquiry with the adult member of the defendant’s family who is residing with him, he is satisfied that there is no likelihood of the defendant being found at his residence within a reasonable time and that there is no agent empowered to accept the service of summons. Finding thus, the judgment in Arundas [2017 (5) KHC 693] was overruled by the Full Bench, directing the appeal to be listed for consideration before the bench as per the roster. This judgment of the Full Bench has since