The main legal point established in the judgment is the importance of ensuring proper service of summons and the duty of the court to be satisfied before proceeding ex-parte.

A. S. BOPANNA, J.

( 1 ) THIS appeal is by the unsuccessful petitioner in Misc. No. 598/2006. The said petition was filed by the appellant under Order IX rule 13 with Section 151 of Code of Civil Procedure seeking an order to set aside the judgment and decree dated 02. 09. 2005 passed in O. S. No. 8635/2004. The Court below after considering the rival contentions has dismissed the petition by its order dated 06. 03. 2007. As such the appellant claiming to be aggrieved has impugned the same in this appeal.

( 2 ) I have heard Sri K. Suman, learned counsel for the appellant and Sri K. Subba Rao, learned Senior counsel on behalf of Sri c. Shankar Reddy, learned counsel for the first respondent. Though notice was issued to the second respondent and service was awaited, his presence at this juncture is unnecessary and as such the matter is heard and disposed by this order.

( 3 ) IT is well settled that in a petition filed under Order IX Rule 13, the issue of setting aside an ex parte judgment and decree could be resorted to either when the Court is satisfied that the summons was not duly served which includes improper procedure adapted resulting in lack of notice or when the petitioner demonstrates that he was prevented by sufficient cause. This aspect of the matter has no doubt been noticed by the Court below and I have also referred to this aspect of the matter at the outset, only to point out that even though the pleadings and evidence before the Court below are voluminous, the order impugned is lengthy and the arguments addressed are weighty, the point of the matter would be to notice the proceedings of the court below in the suit and come to a conclusion as to whether the service of summons made in the manner should be held as sufficient or whether the appellant should be provided an opportunity.

( 4 ) THE scope of consideration noted above would indicate that the detailed reference made to the pleadings, the evidence and cross examination so as to indicate the relationship between the parties and as to whether the appellant was a necessary party at all may not require detailed consideration. Nor would the decisions cited by learned senior counsel in the case of rupchand GUPTA vs RAGHUVANSHI (PVT) LTD. , AIR 1964 SC 1889 and SOUTH INDIA INDUSTRIES PRIVATE LIMITED vs SARUP singh. , AIR 1966 SC 346 come to the aid of the first respondent herein. If it was a case where the appellant would plead that despite service of summons, he was prevented by sufficient cause, then the party approaching the Court on that ground would not only have to plead but should also prove the reasons assigned so as to constitute sufficient cause. Further in a case of this nature any amount of cross-examination to bring about the relationship between the appellant and the second respondent vis-a vis the appellant and the first respondent in the proceedings under Order IX Rule 13 of code of Civil Procedure would not arise since the appellant was not seeking setting aside of the judgment on the ground that he was not made a party to the suit, but on the other hand it is his case that despite being made a party to the suit, he has not been effectively served. It is for this reason the decisions cited supra are not material in this proceedings. In any event, with regard to the pleading regarding summons, the same is available in the petition as well as in the appeal to the extent required.

( 5 ) HENCE the aspect which requires focus is with regard to the procedure adapted for service of summons in the original suit. In this regard Sri K. Suman, learned counsel for the appellant has extensively referred to the provisions contained in order IX Rules 2 and 6 and also Order V Rule 20 of Code of Civil Procedure to point out the procedural safeguard provided and has thereafter taken me through the order sheet of the Court below in the original suit in extenso to contend not only the Court below has seriously erred in permitting publishing of notice by paper pub

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