The main legal point established in the judgment is the significance of proper service of summons and adherence to procedural requirements in setting aside an ex-parte 'summary' decree.

( 1 ) THIS application has been filed in a suit for the recovery of Rs. 12,65,532. 40 filed under the Summary Procedure of Order XXXVII of the Code of Civil Procedure. On 30. 7. 1998 summons and notice of the application were order to issue to the defendants. On 10. 11. 1998, being satisfied that the defendants 1 and 2 had been duly served, and that defendant No. 3 was deemed to have been served by operation of Order XXXVII, Rule 3 of the Civil Procedure Code, the Court proceeded to pass a decree. This was done taking into regard the provisions of Order XXXVII, Rule 2 (3), Civil Procedure Code. Subsequently, execution proceedings were initiated by the plaintiff. The present application under Order XXXVII, Rule 4 is a sequel to these happenings.

( 2 ) IT has been submitted by learned Counsel for the applicants that service had not been properly and legally effected on the defendants. It is also contended that the decree is liable to be set aside as non est and void for the reason that the plaintiff was not a duly registered partnership firm and the special power of attorney authorising the signatory of the plaint could not be taken into consideration since it had. not been notarised. Learned Counsel for the plaintiff had accepted notice of this application and had waived his right to file reply thereto. He had however sought the leave of the Court to file relevant documents. This was granted and he had filed photo copies establishing the fact that the plaintiff is a duly registered firm.

( 3 ) MR. I. C. Kumar, the learned Counsel for the applicant, has relied on the following judgments, viz. P. N. Films Ltd. v. Overseas Films Corporation Ltd. , AIR 1958 Bombay 10; Ramachandra v. Vithaldas, AIR 1964 Bombay 251; L. R. Raja v. Shah, 1986 Contrast Roger 108; and M. A. Ethirajula Naidu v. T. K. C. K. Panikkar, AIR 1957 Madras 752, in support of his argument that in the circumstances of the case it was only possible to resort to Rule 4 of Order XXXVII and not to Order IX of the Code. On this question there is no controversy. What has to be decided is whether the facts of this case fall within the contemplation of Order XXXVII, Rule 4.

( 4 ) FROM reading of the decisions cited by learned Counsel for the applicant as well as from a plain construction of Rule 4 of Order XXXVII it is evident that an ex-parte "summary" decree can be set aside by the Court in two contingencies; either if it is satisfied that service has not been properly effected on the defendants or if sufficient grounds are shown to the Court that the decree ought to be set aside.

( 5 ) ON the first point it was contended that defendants 1 and 2 have not been arrayed as partners of defendant 3. This is too technical and semantic an objection to be accepted. A complete and holistic reading of the plaint makes it clear that defendants 1 and 2 are partners of defendant No. 3. The correctness of this position has not been contested.

( 6 ) IT has further been contended that the service is extremely suspicious and mysterious since these defendants live in different States and that it is, therefore, not possible that they could have been served on the same day. It was also vehemently submitted that the process server of this Court could not effect service outside its territorial jurisdiction. Learned Counsel for the applicant submitted that the service report appears to indicate that service had been effected on Mrs. Rekha Jain and that respondent No. 1 had no sister by that name. It has however not been clearly stated that this respondent does not have any sister, or any sister named Rekha. In my view there should have been a clear statement to this effect and having failed to do so it would be fair to assume that there was an intention towards suppression of material facts.

( 7 ) IT is usually a difficult and delicate task to render a decision on applications for setting aside ex-parte decrees. The competing interests of the plaintiff and defendant are broadingl