J U D G M E N T

Sathish Ninan, J.

The dismissal of an application filed by the appellant-

first defendant seeking to set aside the ex parte decree against her, is under challenge in this appeal.

2. The suit is one for specific performance of an agreement for sale. The appellant-first defendant is the mother, and defendants 2 and 3 are her daughters. According to the appellant, she had been working abroad during the period when the suit was filed and decreed, and she was not served with any summons in the suit. She was unaware of the decree. She is at loggerheads with her children viz. defendants 2 and 3. During the relevant period she was in station only for a period of one month from 01.01.2009 to 01.02.2009. Thereafter, she returned from abroad only on 15.01.2014. It is only thereafter that she came to know about the suit and the decree. Defendants 2 and 3 did not FAO No.12 of 2021 2024/KER/69466 contest the suit properly, neither did they inform the appellant about the suit and the decree. On these allegations the application was filed seeking to set aside the exparte decree against the appellant. The application was dismissed by the trial court.

3. We have heard learned counsel Sri.R.Reji on behalf of the appellant and Sri.George Varghese Perumpallikuttiyil on behalf of the contesting respondents.

4. The suit was decreed on 11.02.2013. Since the appellant was abroad, summons in the suit was served on the appellant only through substituted service. In terms of the Explanation to Article 123 of the Limitation Act, substituted service under Oder V Rule 20 CPC is not deemed to be due service. Therefore what is relevant is the date of knowledge of the decree.

5. It is not in dispute that the first defendant was in abroad during the said period. According to the appellant, on the death of her husband, she came from abroad on 01.01.2009 and returned on 01.02.2009. Thereafter she came back only on 15.01.2014. It is seen that defendants 2 and 3, FAO No.12 of 2021 2024/KER/69466 who are the daughters of the appellant contested the suit, participated in trial and had adduced evidence. The suit was decreed after a full-fledged trial. The appellant has put forward a case that she was not on good terms with her daughters and hence they did not inform the appellant about the suit and the decree.

6. As noted by the trial court, the appellant had returned to her native place after the death of her husband, at a time when the suit was pending. It would be highly improbable that her daughters did not inform her about the suit. As noted, the daughters were hotly contesting the matter, and the suit was decreed after a full-fledged trial. Additionally, challenging the decree, the daughters filed an appeal before this Court as RFA 374/2013. Though the appellant alleges that the daughters are not on good terms with the appellant, there is no evidence in the said regard.

No witness are examined to prove the same.

7. It is in the above circumstances that the trial court held that the case put forward by the appellant is not bona fide and that she must have had knowledge about the FAO No.12 of 2021 2024/KER/69466 suit and the decree.

8. The finding of the trial court cannot be faulted. We do not find sufficient grounds to interfere with the order impugned.

Resultantly, the appeal fails and is dismissed.

SATHISH NINAN JUDGE