Ramachandran Nair, J.
This appeal is filed by the first defendant in O.S.No.468/2003 on the file of the First Additional Sub Court, Thrissur. The order impugned is one passed in I.A.No.9296/2008 in O.S.468/2003. When the appeal came up for admission, we heard the learned counsel on both sides.
2. The suit was decreed on 30.11.2005 and the defendant was set ex parte on 7.11.2005. The appellant filed I.A.No.9296/2008 to condone the delay in filing the application for setting aside the ex parte order and I.A.No.9297/2008 is the application to set aside the ex parte decree. The court below while dismissing I.A.No.9296/2008 held that satisfactory explanation was not furnished for the delay occurred and consequently I.A.No.9297/2008 has also been dismissed.
3. Learned counsel for the appellant submitted that it is clear from the order passed in I.A.No.9296/2008 that summons was not duly served to the appellant. It is submitted that during execution proceedings, the correct address of the appellant was furnished by the respondent/plaintiff. It is stated that instead of the place name 'Kaloor', what is shown in the plaint is “ Eroor” desom.
3. We have perused the copy of the judgment rendered by the court below on 30.11.2005. It is clear from the same that the address of the appellant shown therein and what is shown now in the impugned order is different as regards the place, namely instead of 'Kaloor' therein it is shown as “ Eroor Desom, Nadamma Village, Kanayannur Taluk”. Therefore the contention that there occurred a mistake with regard to the address of the appellant is correct. We find from the order passed in I.A.No.9296/2008 that the court below was of the view that the appellant ought to have mentioned the date of receipt of notice of the execution petition, but that was suppressed. Of course, the said observation was made while considering the application for condonation of delay. The basic question is whether the decree was passed after the summons was duly served on the appellant. If the summons was not actually served, then the entire proceedings cannot be sustained.
4. The learned counsel for the respondent submits that in the execution petition, the appellant appeared and there is no explanation for the unreasonable delay in filing the application. But as the party has not been duly served, we cannot appreciate the said argument also. Finally the learned counsel for the respondent prayed that the appellant may be directed to deposit atleast half of the decree amount. Since we are inclined to allow the application and set aside the decree, at this stage it may not be justifiable to direct the appellant to remit any amount towards the plaint claim. The matter will have to be considered on merits.
Accordingly, we allow this appeal and set aside the impugned orders passed in I.A.Nos.9296/2008 and 9297/2008. The suit O.S.No.468/2003 will stand restored and the court below will proceed in accordance with law. Being an old matter, the court below will take appropriate steps to dispose of the suit expeditiously.
T.R.RAMACHANDRAN NAIR, JUDGE sv. P.V.ASHA, JUDGE