The restoration of an execution petition revives the attachment, and failure to appear despite substituted service justifies an ex parte order.

1. This Civil Miscellaneous Appeal is directed against the order dated 4.8.2018 passed by the learned I Additional District Judge, Thiruvallur in E.A.No.48 of 2017 in E.P.No.128 of 2017 in C.S.No.196 of 2005, dismissing the petition filed by the appellant to set aside the ex parte order dated 22.10.2008.

2. The appellants are the judgment-debtors/defendants and the respondent herein is the decree-holder/plaintiff in E.P.No.128 of 2017 filed by the respondent.

3. Originally the Execution Petition was filed before the Principal District Court, Thiruvallur in E.P.No.12 of 2008. Pending Execution Petition, the appellants have filed petition in E.A.No.562 of 2016 under Order 21, Rule 106 CPC seeking to set aside the ex parte order dated 22.10.2008 passed in E.P.No.12 of 2008. Subsequently, the E.P.No.12 of 2008 was transferred to the file of the I Additional District Court, Thiruvallur and numbered as E.A.No.128 of 2017 and consequently, E.A.No.562 of 2016 was numbered as E.A.No.48 of 2017.

4. The appellants have filed E.A.No.48 of 2017 (E.A.No.562 of 2016) alleging that on 25.8.2016, when the workers of the first appellant were involved in the site preparation by way of cleaning bushes on the land, all of a sudden a some people attempted to enter into the premises claiming that one A.Narayanan had purchased the properties and the appellants should not do any work in the properties. According to the appellants, on an enquiry, they came to know that the properties were subject matter of attachment in Court proceedings in E.P.No.12 of 2008 and the appellants have resisted the attempt of the said persons of the respondent. Immediately, the appellants have engaged a counsel and obtained copy of the Execution Petition and found that the properties were attached pursuant to the order passed by the Court dated 22.10.2008 by setting them ex parte for their nonappearance. According to the appellants, no valid notice has been served upon them in the Execution Petition and only on 25.8.2016, they came to know about the pendency of the Execution Petition and filed petition to set aside the ex parte order dated 22.10.2008 within a period of 30 days. The appellants have got fair chance of success in the Execution Petition and the respondent is proceeding with the Execution Petition with sale of the properties without valid attachment over the same. Hence, the appellants prayed for setting aside the ex parte order dated 22.10.2008 passed in the Execution Petition.

5. Resisting the petition, the respondent filed counter stating that since the appellants have deliberately evaded service of notice in the Execution Petition, the Court has ordered substituted service and after effecting paper publication, the Executing Court called the appellants and set them ex parte and ordered attachment of the properties. The appellants are put to strict proof that only on 25.8.2016, they came to know about the pendency of the Execution Petition and orders passed thereon. According to the respondent, the deponent of the affidavit Mr.Ravi Agarwal is the Director of M/s.Venkatesh Coke and Power Limited, having office at No.6926A/D1, Chandrawal Road, New Delhi has cleverly, conveniently and deliberately with an intention to evade service of notice has returned the postal envelop sent to the said address with an endorsement “wrong address”. It is stated that when the appellants are bent upon evading service of notice through fraudulent means, cannot turn back and say that there is no valid service of notices later on, which clearly shows that the appellants have approached the Court with unclean hands. It is also alleged in the counter that the conduct of the appellants for over 11 years and their lack of interest in discharging the loan with interest therein and even to contest the case by receiving notices from the Court is ample proof that the appellants are interested only to defraud the respondent by filing false affidavit, wasting the Court's time, abusing