Case Note & Summary
The appellant, Shri K. Raja, filed a Miscellaneous First Appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 (CPC) against an order dated 28.08.2024 passed by the XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru (CCH-20) in Misc. No. 25012/2022. The trial court had rejected the appellant's petition under Order 9 Rule 13 read with Section 151 CPC seeking to set aside an ex-parte decree passed in O.S. No. 25432/2015. The suit was filed by the respondent, V. Prabhakar, for recovery of Rs. 8,80,000/- from the appellant. The trial court had issued summons to the appellant, which were returned unserved at the first instance. Subsequently, summons were sent by RPAD and returned with the endorsement 'defendant is not in station'. The respondent then filed an application under Order 5 Rule 20 CPC for paper publication, which was allowed. The suit proceeded ex-parte and a decree was passed. The appellant filed an application under Order 9 Rule 13 CPC to set aside the ex-parte decree, contending that he had no knowledge of the suit proceedings and that the summons were not properly served. The trial court rejected the application, observing that the appellant had knowledge of the proceedings. The High Court heard both sides. The appellant's counsel argued that the appellant was not aware of the suit and that the paper publication was not brought to his notice. The respondent's counsel opposed the appeal, stating that the appellant had knowledge. The High Court examined the record and found that the summons were returned unserved and the paper publication was not proved to have been brought to the appellant's notice. The Court held that the appellant had made out sufficient cause for setting aside the ex-parte decree. The High Court allowed the appeal, set aside the trial court's order, and set aside the ex-parte decree subject to payment of costs of Rs. 1,000/- to the respondent. The appellant was directed to appear before the trial court on 06.01.2025 and the trial court was directed to dispose of the suit expeditiously.
Headnote
A) Civil Procedure Code - Setting Aside Ex-Parte Decree - Order 9 Rule 13 r/w Section 151 CPC - Sufficient Cause - The appellant-defendant contended that summons were not properly served and he had no knowledge of the suit proceedings. The trial court rejected the application on the ground that the appellant had knowledge. The High Court held that the appellant had made out sufficient cause as the summons were returned unserved and paper publication was not proved to have been brought to his notice. The order of the trial court was set aside and the ex-parte decree was set aside subject to payment of costs. (Paras 2-6) B) Civil Procedure Code - Service of Summons - Order 5 Rule 20 CPC - Paper Publication - The trial court allowed paper publication under Order 5 Rule 20 CPC. However, the High Court noted that the appellant denied knowledge of the publication and the respondent failed to prove that the publication was brought to the appellant's notice. Hence, the service was not deemed sufficient. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree on the ground that the appellant had knowledge of the proceedings and failed to appear.
Final Decision
Appeal allowed. The order dated 28.08.2024 in Misc. No. 25012/2022 is set aside. The ex-parte decree in O.S. No. 25432/2015 is set aside subject to payment of costs of Rs. 1,000/- to the respondent. The appellant is directed to appear before the trial court on 06.01.2025. The trial court is directed to dispose of the suit expeditiously.
Law Points
- Order 9 Rule 13 CPC
- Section 151 CPC
- Order 5 Rule 20 CPC
- Sufficient Cause
- Ex-Parte Decree
- Service of Summons
- Paper Publication
