VENKATESH Vs. P SUBBAIAH

JUDGEMENT

(1.) THIS appeal is by the unsuccessful petitioner in Misc. No. 598/2006. The said petition was filed by the appellant under Order IX rule 13 with Section 151 of Code of Civil Procedure seeking an order to set aside the judgment and decree dated 02. 09. 2005 passed in O. S. No. 8635/2004. The Court below after considering the rival contentions has dismissed the petition by its order dated 06. 03. 2007. As such the appellant claiming to be aggrieved has impugned the same in this appeal.

(2.) I have heard Sri K. Suman, learned counsel for the appellant and Sri K. Subba Rao, learned Senior counsel on behalf of Sri c. Shankar Reddy, learned counsel for the first respondent. Though notice was issued to the second respondent and service was awaited, his presence at this juncture is unnecessary and as such the matter is heard and disposed by this order.

(3.) IT is well settled that in a petition filed under Order IX Rule 13, the issue of setting aside an ex parte judgment and decree could be resorted to either when the Court is satisfied that the summons was not duly served which includes improper procedure adapted resulting in lack of notice or when the petitioner demonstrates that he was prevented by sufficient cause. This aspect of the matter has no doubt been noticed by the Court below and I have also referred to this aspect of the matter at the outset, only to point out that even though the pleadings and evidence before the Court below are voluminous, the order impugned is lengthy and the arguments addressed are weighty, the point of the matter would be to notice the proceedings of the court below in the suit and come to a conclusion as to whether the service of summons made in the manner should be held as sufficient or whether the appellant should be provided an opportunity.