In cases of defective service of summons, the court is bound by law and equity to set aside the ex parte decree, and it is unnecessary for the defendant to establish a friable issue at the stage of setting aside the ex parte decree.

T.S. Thakur, J.

1. This appeal arises out of a judgment and decree dated 15.2.2006 passed by the Additional District Judge, Delhi in a suit under Order 37 of the C.P.C. for recovery of a sum of Rs.6,72,000/- and an order dated 18.7.2006 passed under Order 37 Rule 4 of the C.P.C. declining to set aside the said decree.

2. The plaintiff respondent claimed a decree for a sum of Rs.6,72,000/- with interest @ 12% p.a. in a suit under Order 37 of the C.P.C. filed against the defendant-appellant. The defendant, it appears, was served by publication of a notice in "Statesman" in its issue dated 22.12.2005. Since the defendant did not enter appearance within the stipulated period of 10 days as required under Order 37 Rule 2(3) of the C.P.C, the Trial Court proceeded to decree the suit in terms of judgment and decree dated 15.2.2006 treating the averments made in the plaint to be admitted. The defendant, thereafter, made an application under Rule 4 of Order 37 of the C.P.C. for setting aside the aforementioned judgment and decree on the ground that service of summons upon him was not in accordance with law. Relying upon the decision of this Court in Hans Raj v. Lakhi Ram : AIR 2005 Delhi 87 , it was contended by the defendant before the Trial Court that service by publication was not complete in a suit under Order 37 unless a copy of the plaint was also published along with the summons. That contention found favor with the Trial Court, who recorded a clear finding to the effect that service of summons upon the defendant-appellant was not in accordance with law. Having said so, the Trial Court proceeded to hold that the decree passed by it could not be set aside as the defendant-appellant had not raised any friable issue upon which he could claim the leave to defend the suit. The defendants application under Order 37 Rule 4 was on that finding dismissed by the Court below by its order dated 18.7.2006. The appellant has, as noticed earlier, appealed to this Court against the aforementioned two judgments and orders.

3. We have heard the learned Counsel for the parties at some length and perused the orders under challenge.

4. The finding recorded by the Trial Court that the service effected upon the defendant-appellant herein was not in accordance with law has not been assailed before us by the plaintiff-respondent. That being so, the only question that falls for our consideration is whether the Trial Court was justified in refusing to exercise its powers under Order 37 Rule 4 of C.P.C. even after it came to the conclusion that the defendant had not been properly served. The Trial Court has, as noticed above, declined to invoke its powers on the ground that the defendant-appellant had not raised any friable issue. It has, in support of that line of reasoning, relied upon a decisions of the Supreme Court in Rajni v. Suresh : [2003] 3 SCR 66 . We have gone through the said decision but find it difficult to hold that the same interprets the provision of Order 37 Rule 4 in the manner understood by the Trial Court. That was a case in which the defendant was served by registered A.D. where after an application under Order 37 Rule 4 of the C.P.C. was filed seeking an order setting aside the ex pane decree. This application was dismissed by the Trial Court on the ground that the same did not disclose any special circumstance to warrant an order under Rule 4 of Order 37 of C.P.C. The High Court before whom the said order was challenged also agreed with the Trial Court and dismissed the revision petition filed against the said order. In a further appeal before the Supreme Court, Their Lordships held that non-service of summons will undoubtedly be a special circumstances within the meaning of Rule 4 of Order 37 of C.P.C. Having said so, Their Lordships also observed that if in an application, more than one relief could be granted by the Court, all such reliefs must be claimed by the party concerned. The Court declared that it was impermissible