The limitation period for filing applications after substituted service begins from the date of actual knowledge of the decree.

JUDGMENT

Sathish Ninan.J The application to set aside the ex parte decree, accompanied with an application seeking condonation of the delay of 386 days, were dismissed by the trial court. The second defendant-applicant is in the appeal.

2. The suit is one for setting aside the sale deed executed by defendants 1 and 2 and for recovery of money from the first defendant.

3.The plaintiff is the sister of the first defendant.

According to the averments in the plaint, the plaintiff stood as a guarantor for a chitty transaction subscribed to by the first defendant. As the first defendant defaulted in repayment, the plaintiff was compelled to discharge the liability. In the suit, the plaintiff claims recovery of the said amount from the first defendant. The first defendant had alienated his property in favour of the second defendant.

Therefore, the plaintiff also seeks to set aside the sale deed.

4. The suit was decreed ex parte on 19.08.2023. It is not in dispute that summons in the suit was served by substituted service. According to the applicant, she came to know about the decree only on 23.09.2024 upon receipt of notice in the execution petition. It is contended that the applicant was suffering from heart ailment and therefore, a delay of 386 days occurred in filing the application.

The trial court found that the applicant had not proved her plea of medical condition by producing any evidence.

Accordingly, the application was dismissed.

5. We have heard the learned counsel on either side.

6. It is not in dispute that summons in the suit was served on the applicant by substituted service. As per Article 123 of the Limitation Act, 1963 , where summons has been served by substituted service, such service cannot be treated as due service for the purpose of computing limitation. The period of limitation would commence only from the date of knowledge of the decree. In the present case, it is the applicant’s contention that she came to know about the decree only on 23.09.2024 upon receipt of notice in the execution petition. Having due regard to the fact that summons was effected by substituted service, we find that the delay in filing the present application is not as calculated by the applicant, but would only few days since the application has been filed in the year 2024 itself.

7. Considering the nature of the suit and the circumstances stated above, we are inclined to allow the application and permit the applicant to contest the suit. The interests of the first respondent/plaintiff can be safeguarded by directing that the property in question shall not be alienated or encumbered until the disposal of the suit.

In the result, the appeal is disposed of as hereunder:

(i) The ex parte decree as against the appellant- second defendant alone shall stand set aside on condition that the appellant pays an amount of Rs.10,000/- as costs to the counsel appearing for the 1^st respondent-plaintiff before this Court within a period of one week from today.

(ii) The appellant-second defendant shall not alienate or encumber the property pending disposal of the suit.

(iii) In the event of non payment of the costs as ordered, the appeal will stand dismissed affirming the order impugned.

The suit was instituted as a pauper, as early as in

2014. Hence, we request the trial court to make every endeavour to try and dispose of the suit as expeditiously as possible, and at any rate, within six months from the date of receipt of a copy of this judgment.

Sd/-