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Defendant who refused summons not entitled to seek setting aside of ex-parte decree using Order IX Rule 13 CPC

Defendant who refused summons not entitled to seek setting aside of ex-parte decree using Order IX Rule 13 CPC

Vishwabandhu Vs Sri Krishna and another

Supreme Court


C.A. No.- 6094-6095/2021

About/from the judgment:

The Supreme Court has set aside a judgment of the High Court, which had allowed the setting aside of an ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure.

In this case, the defendant had refused to accept the summons issued in the suit. After the suit was decreed ex-parte, execution proceedings were initiated. The defendant duly acknowledged the receipt of auction notice with respect to the suit property. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code.

Though the trial court rejected the application, the High Court allowed the same in appeal. Though the High Court observed that the defendant was not vigilant as he ought to have been, it added that the "conduct does not on the whole warrant to castigate him as an irresponsible litigant".

The High Court said that the the inconvenience caused to the plaintiff on account of the absence of appellant may be compensated by warding appropriate cost.

Aggrieved with the High Court restoring the suit, the plaintiff approached the Supreme Court.

At the Supreme Court, the bench noted that Sub-Rule (5) of Order V Rule 9 of the Code states inter alia 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 bench also referred to Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.

It noted that the decision of the Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 has held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not instation", due service has to be presumed.

The Court therefore held that the defendant was not vigilant.

"In the light of the features indicated above and the fact that the auction was allowed to be undertaken, 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", the Court observed.

The Court set aside the High Court's judgment which allowed the application under Order IX Rule 13 of the CPC.

Read the Judgment


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