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CASE LAWSCPCLEGAL AFFAIRS

O IX R 13 CPC

Vishwabandhu v.Sri Krishna and another, SC 2021

FACTSRespondent No.2 filed a Suit in the court of Civil Judge (Junior Division), Mainpuri, Uttar Pradesh, for recovery of money along with interest submitting inter alia that the defendant in the Suit i.e. Respondent No.1 had failed to refund Rs.22,400/- received by him towards part sale consideration for sale of property.

The Suit was filed and as the summons sent to Respondent No.1 by registered post was received back with postal endorsement of โ€˜refusalโ€™.The order passed by the Trial Court was

…….Notice is deemed to be sufficient. No one is present on behalf of defendant, the defendant is being proceed ex-party accordingly……..

The matter was thereafter adjourned on few dates and finally an ex-parte decree was passed in favour of Respondent No.2 in the sum of Rs.22,400/- along with interest @ 9%.

In the application filed by Respondent No.2 seeking execution of the decree the property which was subject matter of the agreement to sell, was sought to be attached.

Later, the property was attached on the basis of a report filed by the Ameen. The report indicated that since the judgment debtor i.e. Respondent No.1 could not be found on search, drum beats were carried out at the place of residence of Respondent No.1.

In the aforesaid circumstances, the executing court issued warrant of sale of property whereunder the property was directed to be auctioned. Accordingly, the property was put to auction in which the present appellant as the highest bidder with a bid ofRs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the amount was deposited by the appellant.

On 19.12.2000 Respondent No.1, for the first time, appeared before the court and filed an application under Order IX Rule 13 of Code of Civil Procedure praying that the ex-parte decree dated be set aside. The aforesaid application was dismissed by the Additional District Judge, Mainpuri

Respondent No.1, being aggrieved, filed first appeal from order in the High Court challenging the order. During the pendency of said appeal, sale certificate was issued in favour of the Appellant.

Subsequently first appeal was allowed by the High Court, citing –

โ€œIn the instant case, the appellant appears not to be vigilant as he ought to have been, yet the conduct does not on the whole warrant to castigate him as an irresponsible litigant. Further, the inconvenience caused to the plaintiff respondent on account of the absence of appellant may be compensated by warding appropriate cost. In the interest of justice and under the peculiar circumstances of the case, I set aside the impugned judgment and decree……..”

Thereafter, Respondent No.2 filed Civil Miscellaneous Recall Application seeking recall inter alia on the ground that Respondent No.1 had full knowledge of the proceedings and had intentionally and deliberately avoided to appear and contest the matter. The application was, however, dismissed by the High Court.

CAUSE – These appeals challenge: (i) the Judgment and order passed by the High Court First Appeal From Order and (ii) the Order passed by the High Court in Civil Miscellaneous Recall Application.

ARGUMENTS – It was submitted by Mr. Sankaranarayanan, learned Senior Advocate that Respondent No.1 was always aware of the proceedings and had deliberately avoided to appear and contest the matter; that his stand in the application under Order IX Rule 13 of the Code itself indicated that he was ready to execute sale deed in favour of the original plaintiff and that he had no money to repay the amount received by him way of part consideration.

Mr. Pradeep Kumar Yadav, learned Advocate submitted that the orders passed by the High Court did not call for any interference and that the Suit having been restored to the file, the matter be allowed to be taken to the logical conclusion.

ISSUE – Whether a non vigilant respondent be entitled to seek setting aside of an ex parte decree.

DECISION – The summons issued by registered post was received back with postal endorsement of refusal. Sub-Rule (5) of Order V Rule 9 of the Code states that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.

The order dated trial court was thus completely in conformity with the legal requirements. Even after the passing of the ex-parte decree, the report filed by the process server clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice.

Despite such knowledge, Respondent No.1 allowed the property to be put to auction. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.

The Court held that Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant. Thus, the court allowed the appeals asking to set aside the two orders passed by the High Court and dismiss the application preferred by Respondent No.1 under Order IX Rule 13 of the Code.

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