Proper serving of notice in civil procedures is crucial for just adjudication, emphasizing merits over procedural missteps.

Devan Ramachandran , J.

The petitioner challenges Ext.P11 order of the learned Family Court, Kottayam at Ettumanoor, asserting that it has been issued on wrong factual basis and adverting to incorrect contentions and assertions.

2. Compendiously, the petitioner suffered an ex parte decree in OP No.1373/2023 filed by the respondent; and he filed IA No.5/2025 to have the same set aside, invoking the provisions of Order IX Rule 13 of the Code of Civil Procedure (CPC). The learned Court issued notice on this application, but on the envelope, the endorsement was “RP 5/2025 (OP 1373/2023)” (sic). For some reason, this envelope was not received by the respondent and she says that she and her power of attorney holder were abroad; but the postal endorsement on it appears to be “refused” (sic).

3. The learned Court, thereupon, proceeded to consider IA 5/2025 and since there was no appearance for the respondent, it set her ex parte on 09.06.2025, inditing the order “respondent absent, no representation, set ex parte. put up the back file” (sic). It then listed the matter to 27.06.2025, thereafter to 05.07.2025 and 07.07.2025, on which day, the application was allowed, thus the ex parte decree being set aside.

4. Knowing this, the respondent filed IA No.7/2025, explaining that she did not receive the notice in IA 5/2025 and that the endorsement on the earlier notice - that she had refused to accept it - was wrong, since she and her power of attorney holder were both abroad.

5. This application was considered by the learned Family Court and allowed through Ext.P11, which is now challenged before us.

6. Going by the admitted facts, there can be little doubt that there are several concatenated sequences of errors in this case; but which may not be attributable to any of the parties or to the Court.

7. We say as afore because, when the notice was issued from the learned Family Court in IA 5/2025, its envelope contained the endorsement RP 5/2025, but the respondent says she could not accept it since she and her power of attorney holder were abroad. However, the postal endorsement was to the effect “refused”.

8. Interestingly, the respondent further explains that even though the postwoman could not deliver the envelope to her or her power of attorney for the afore reason, she informed her neighbours about the same, who took the photograph of the same and sent it to her. She says that she, thereupon, informed her counsel; and the latter, being under the bona fide impression that the envelope was with respect to RP 5/2025, entered appearance in the same, but which was, in fact, in a different Original Petition, namely OP No.516/2024 between certain other persons; and consequently that he discontinued his appearance thereafter.

9. In the meanwhile, the learned Court took it that notice in IA 5/2025 had been properly served, since it contained the endorsement “refused”; and proceeded to set the respondent ex parte and to allow the same.

10. Indubitably, no fault can be placed on any of the parties, though the question why the notice issued to the respondent had been returned with the endorsement “refused”

remains a mystery.

11. Be that as it may, it is undoubted that the petitioner filed IA No.5/2025 to have the ex parte decree against him set aside, invoking the provisions of Order IX Rule 13 of the CPC. By a quirk of destiny, that application has been allowed ex parte as seen above; against which, the respondent filed her application, culminating in Ext.P11 order.

12. Therefore, this is a case where there is an ex parte decree was followed by an order setting aside the same - also is