J U D G M E N T

G. Girish, J.

The defendants in O.S.No.137 of 2014 of the Sub Court, Chavakkad has preferred this appeal under Section 104 read with Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908.

2. In the above suit, the Sub Court, Chavakkad passed an ex parte money decree against the petitioners on 28.11.2015. The petitioners filed I.A.No.1 of 2020 for the condonation of delay of 1724 days, and I.A.No.2 of 2020 for setting aside the ex parte decree, before the trial court. The learned Sub Judge dismissed both the above applications by the impugned common order dated 19.09.2022. Aggrieved by the above verdict, the petitioners are before this Court with this appeal.

3. According to the petitioners, they did not receive summons, and nor did they get any intimation about the suit instituted by the respondent-plaintiff. It is stated that, in connection with the treatment for heart ailment of the 1^st petitioner, the petitioners were away from their residence for a long time. The petitioners are said to have received information regarding the ex parte decree passed against them only at the time when they received notice in the execution proceedings initiated by the respondent-plaintiff. For the above reason, the petitioners seek to reverse the impugned common order passed by the Sub Court, Chavakkad and to set aside the ex parte decree passed against them in O.S.No.137 of 2014 of the said court.

4. The respondent-plaintiff appeared through his counsel.

5. Heard the learned counsel for the appellant, and the learned counsel for the respondent.

6. It is apparent from the case records that substituted service of summons by way of affixture and paper publication was resorted to in O.S.No.137 of 2014 of the Sub Court, Chavakkad. It was so necessitated since the summons issued to the petitioners through court process, and through registered post, were returned with the endorsement that they are not residing in that address.

7. The affixture of summons has been done at the locked residence of the petitioners during the time when they were said to have left the place in connection with the treatment of the first petitioner. The paper publication of the summons is seen to have been effected in an evening daily which was unheard of hitherto.

8. A Division Bench of this Court in which one among us (Anil K. Narendran, J.) was a party, had held in Mohammed Shameer v. T.P.Abdul Majeed [2022 (2) KHC 642] that all courts have to ensure that, where service of summons or notice is made by advertisement, it shall be made only in Newspapers having sufficient circulation in the locality concerned, and that advertisements made in Newspapers having limited circulation or published in evening only, will not satisfy the requirement of rule.

Paragraph No.12 of the aforesaid decision reads as follows:

“12. Adding to that, the publication was made in a newspaper having circulation obviously within the city limits of Kozhikode. It may be noted that when the appellant was working abroad and the summons has been published in a local daily, one cannot be sure that it reaches the place where he has been available. In view of the purpose for which a summons is issued, as pointed out above, it can only be said that the publication in 'Pradeepam' daily did not at all satisfy the requirements of Order V Rule 20 of the Code. Sub-rule (1A) of Order V, Rule 20 of the Code says that where the Court acting under sub-rule (1), orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. The provision makes it clear that the newspaper shall be a daily newspaper, having circulation in the locality. The publication in the newspaper, therefore, shall not be an empty formality. Bearing in mind the purpose for which a summon is published, as has been explained by the Apex Court in Auto Cars