A/3074/2026 of Mrs.D.Mahalakshmi alias D Poppy Vs Velayudam and another on 28 October 2026

ORDER

The present application has been filed seeking to set aside the ex parte decree dated 29.07.2025 passed in C.S.No.67 of 2024.

A No. 3074 of 2026

2. The suit was instituted on 10.01.2024 and numbered on 21.03.2024, seeking partition and separate possession of the suit schedule property. The summons issued to the applicant/defendant was returned unserved on 28.03.2024 with the endorsement “no such person”.

3. By order dated 30.04.2024, the Assistant Registrar No.I directed the matter to be placed before the learned Master. By order dated 18.06.2024, the learned Master permitted the plaintiffs to effect substituted service on or before 01.07.2024. Subsequently, paper publication was effected in the newspaper “Malai Murasu”, pursuant to an order dated 18.07.2024. The defendant was thereafter set ex parte on 20.02.2025. Following the recording of the plaintiff’s evidence, an ex parte decree was passed on 29.07.2025.

4. Subsequently, an Advocate Commissioner was appointed to inspect the suit schedule property and issued a notice to the applicant to be present during the inspection. The applicant claims that she became aware of the suit only after the ex parte decree was passed. She has therefore filed the present application contending that the decree was passed without proper service of summons and without following the procedure prescribed under Order IV Rule 4 of the Original Side Rules, 1994.

A No. 3074 of 2026

5. The plaintiffs/respondents have filed a counter affidavit contending that the defendant deliberately evaded service of summons, compelling them to seek substituted service by paper publication. They further contend that, despite such publication, the defendant failed to appear before this Court. According to them, the defendant was rightly set ex parte and there is no ground to set aside the decree.

6. Heard the learned counsel appearing for the parties and perused the records.

7. Order IV Rule 4 of the Original Side Rules, 1994, prescribes the procedure to be followed when summons is returned unserved. Under the said provision, on the date fixed for the return of summons, the matter is to be placed before the First Assistant Registrar. If the summons is returned unserved, the First Assistant Registrar is required to direct the plaintiff to apply for re-issue of summons and pay the necessary charges within seven days. A fresh date is then to be fixed for the return of summons. In the event of non-compliance, the matter is to be placed before the learned Master for dismissal for default.

8. In the present case, the summons was returned unserved with the endorsement “no such person”. However, the plaintiffs did not follow the procedure prescribed under Order IV Rule 4 of the Original Side Rules for re-

A No. 3074 of 2026

issue of summons. Instead, they proceeded to effect substituted service by paper publication. The records do not indicate that the prescribed procedure was followed before the defendant was set ex parte. In these circumstances, the procedure adopted for proceeding against the defendant ex parte cannot be sustained.

9. The applicant/defendant contends that the plaintiffs are strangers to the suit schedule property and have no right to claim a share therein. The plaintiffs, on the other hand, claim to have purchased a portion of the property from its co- owners. These rival claims require adjudication on merits. If the ex parte decree is allowed to stand without affording the defendant an opportunity to contest the suit, she may suffer serious prejudice. On the other hand, no irreparable prejudice would be caused to the plaintiffs if the suit is restored and decided on merits, after affording both parties an opportunity of being heard.

10. In view of the above facts and circumstances, this Court is satisfied that sufficient grounds have been made out to set aside the ex parte decree. Accordingly, the application is allowed, the ex parte decree dated 29.07.2025 passed in C.S.No.67 of 2024 is set aside, and the suit is restored to its original file for disposal on merits.

A No. 3074 of 2026

11. The Registry is directed to restore C.S.No.67 of 2024 and list the suit for hearing on 09.12.2026.

12. In the meantime, the applicant/defendant shall file her written statement in accordance with law. 28-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No mk

A No. 3074 of 2026

HEMANT CHANDANGOUDAR, J. mk A No. 3074 of 2026 in C.S.No.67 of 2024 28-10-2026