The main legal point established in the judgment is the significance of proper service of summons and the requirement for compliance with the relevant provisions of the Civil Procedure Code.

S. Muralidhar, J.

IA Nos. 6012 & 6014 of 2009 in CS(OS) No. 1043 of 1999

1. IA No. 6012 of 2009 is an application under Order IX Rule 13 CPC on behalf of the Defendant seeking the setting aside of the ex parte judgment and decree dated 24th October 2002 passed by this Court in Suit No. CS (OS) 1043 of 2009.

2. The application has been accompanied by an IA No. 6014 of 2009 under Section 5 of the Limitation Act seeking condonation of delay in filing the application under Order IX Rule 13 CPC.

3. The aforementioned suit was filed by the Plaintiff seeking recovery from the Defendant of a sum of Rs. 10,42,459/- together with pendente lite interest @ 24% per annum from the date of filing of the suit till the realisation of the amount and the costs. By an order dated 14th May 1999 of this Court, summons to the Defendant were directed to issue returnable on 26th October 1999. Summons were directed to be served on filing of process fee as well as registered covers with acknowledgment due. On 26th October 1999 the learned Joint Registrar noticed that none is present for the Defendant despite service nor any written statement filed. The case was therefore directed to be listed before the Court. On 14th December 1999 a learned Single Judge after noticing that no one was appearing on behalf of the Defendant despite service set the Defendant ex parte. The matter was set down before the learned Joint Registrar again on 17th April 2000 for ex parte evidence. On 17th April 2000 and 26th September 2000 the case was adjourned since the Plaintiff had not filed affidavit by way of ex parte evidence. Thereafter the affidavit was filed and the case was listed for exhibiting of documents which was ultimately done on 13th September 2002. On 24th October 2002 a decree was passed in favour of the Plaintiff and against the Defendant for the sum together with interest as prayed for. A decree was also drawn up on that basis.

4. I.A. No. 6012 of 2009 under Order IX Rule 13 CPC was filed by the Defendant on 21st April 2009. The explanation offered in I.A. No 6014 of 2009, being an application seeking condonation of the delay in filing I.A. 6012 of 2009, is that the Court file was inspected on 30th March 2009 and there was nothing to suggest that the envelope containing the plaint and documents along with the process fee was filed by the Plaintiff for effecting service of summons pursuant to the order dated 14th May 1999 and that such envelope with summons was dispatched to the Defendant by registered post at the correct address. There was no evidence that service had been effected by the postal authorities or whether the postal envelope had come back unserved. The file showed that a process server attached to the District Court at Ghaziabad had made an endorsement on the summons that he had visited the premises of the Defendant in Ghaziabad and that the summons were served on the Defendant. It is submitted that there was no order passed by the Court directing service of summons through the process serving agency of Ghaziabad. It is submitted that the said service was no service in the eye of law and therefore the ex parte judgment and the consequent decree is liable to be set aside. The Defendant in any event denies having received that summons.

.5. It is stated in the application that on 25th March 2009 an Ameen from the Office of the District Court, Ghaziabad, UP visited E-34, Daya Nand Nagar, Ghaziabad, UP i.e. the premises of the Defendant and asked that the premises be vacated since the property was attached and auctioned under the orders of the Ghaziabad court. It is then upon enquiring, that the Defendant came to know of the ex parte judgment passed by this Court. Thereafter the applicant engaged an advocate who filed his vakalatnama in this Court on 26th March 2009. The suit file was thereafter inspected, the records traced and the present application was filed on 22nd April 2009.

6. The principal ground taken in I.A. 6012 of 2009, which i