Defendants must timely engage legal counsel to challenge ex parte decrees; mere absence of service does not justify setting aside such decrees.

Sathish Ninan, J.

FAO Nos.330/2011 and 344/2011 are by the husband and wife who are defendants 1 and 2 respectively, in a suit for specific performance of an agreement for sale. The suit was decreed ex parte by the trial court on 13.10.2003. The husband and wife were defendants 1 and 2 respectively. The wife filed application seeking to set aside ex parte decree on condonation of delay of 2211 days. It was dismissed by the trial court. Challenging the order these appeals are filed. The husband did not file any application to set aside the decree.

2. We have heard learned counsel on either side.

3. In the affidavit filed in support of the applications it is stated that the petitioner was not served with the summons in the suit and that during the relevant period she was at Bangalore.

4. The summons in the suit was served on the defendants through substituted service, by affixture. PW2 is the Process Server who carried out the affixture. PWs.3 and 4 are the children of the defendants. They deposed that till the year 2000, they were at Mumbai with their parents and that in the year 2000 they shifted to Bangalore along with their mother. After one year, their father also joined them. In 2009 they returned to Kerala. They produced certain school records to substantiate their claim.

5. The above seem to suggest that the defendants were unaware of the suit and the decree. However, the facts being noticed hereunder would indicate otherwise.

6. In the suit the defendants (husband and wife) entered appearance and filed vakalath on 26.07.2000 through Advocates Radhakrishnan K. Warrier, Michlekutty Mathew and George Kurian. The written statement dated 03.03.2011 was filed on 05.03.2001.

The agreement sought to be enforced in the suit was a registered one. Thereafter, on 08.06.2001, one Advocate K.G. Vijayakumar entered appearance in the suit on behalf of the defendants on obtaining relinquishment of vakalath from the previous lawyers.

On 13.10.2003, ex parte decree was passed in the suit.

7. On 03.03.2004, the plaintiff on depositing the balance sale consideration, filed IA 3626/2005. Notice was given to the defendants on the said application. Therein also the very same Advocate, Sri.K.G. Vijayakumar appeared. On 22.01.2009 plaintiff- decree holder filed EP 13/2009 for execution of the decree. Notice was issued to the defendants-judgment debtors. Therein, the wife, who is the petitioner, entered appearance on

25.05.2009. The husband remained ex parte.

8. After execution of sale deed, the Amin visited the property to effect delivery. Delivery was obstructed by the applicant’s(wife) mother. She filed EA 225/2010, a claim/ obstruction petition. After taking evidence, the claim petition was dismissed on 29.03.2011. In the meanwhile, the present applications were filed by the wife. As noted by the trial court, since the defendants had entered appearance in the suit and had filed written statement, the mere fact the summons was served on the defendants by substituted service is of no consequence. It is also to be noticed that there had even been a change of vakalath. A fresh vakalath was filed through another lawyer namely, Adv.K.G.Vijayakumar on 08.06.2001.

9. The defendants contended that they had not entrusted their vakalath to any Advocate and that they were unaware of the suit. The defendants denied their signatures. The husband was examined as DW1. He deposed that in an earlier litigation in connection with his employment, Advocate Michlekutty Mathew was his Advocate and that he had given vakalath and signed blank papers to him. The suggestion is that the same might have been mis-utilised to file vakalath and written statement. So also though there was another suit as OS 58/2000 against him in which