Defendant Refused to Receive Summons Not Entitled To Seek Setting Aside Of Ex-Parte Decree U/O 9 R.13 - SC

An ex-parte decree has been passed in favour of Respondent No.2 in the sum of Rs.22,400 along with interest @ 9%. The Suit was filed on 25.05.1993 and the summons sent to Respondent No.1 by registered post was received back with postal endorsement of 'refusal’. Property was put to auction on 16.12.2000 and the present appellant was the highest bidder with a bid of Rs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the amount was deposited by the appellant. Respondent No.1 appeared before the court and filed an application praying that the ex-parte decree dated 16.09.1997 be set aside. 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 (‘the Code’, for short) praying that the ex-parte decree dated 16.09.1997 be set aside.  The application was dismissed on 05.07.2005 by the Additional District Judge, Mainpuri with following observation that the application was filed after more than 8 months from the knowledge about the pendency of the execution proceedings, indicates that in spite of having specific knowledge of the same he has filed this application after the period of limitation and the reason shown in applications is totally false, frivolous and baseless. Respondent no.1 filed appeal to High Court during the pendency, sale certificate was issued in favour of the Appellant on 30.03.2006 by virtue of order passed by the concerned court in Execution No.4 of 1998. In meantime High Court set aside the impugned judgment and decree. Allowed appeal. Appellant, who is having sale certificate, approached the High Court against this order but same was dismissed .  Appellant challenged both orders in Supreme Court. Apex court observed that Section 27 of General Clause Act gives rise to a presumption that service of notice has to be effected when it is sent to the correct address by registered post. Service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. The High Court rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. Yet, the High Court proceeded to grant relief in favour of Respondent no.1, not entitled to relief. Appeal Allowed. 

September 29, 2021. 

VISHWABANDHU   Versus  SRI KRISHNA AND ANR.