( 1 ) BY this petition under Article 227 of the Constitution of India, the petitioner challenges the judgment and order dated 28th February, 2003 passed by the learned Judge of the City Civil Court, rejecting the Civil Miscellaneous Application No. 771 of 2001 filed by the petitioner for setting aside the exparte judgement and decree dated 28th January, 2000 passed against it in Summary Suit No. 4206 of 1999 filed by the respondent for recovery of an amount of Rs. 3,33,368/- along with interest at the rate of 18% per annum from 1st August, 1999.

( 2 ) THE respondent herein instituted Summary Suit No. 4206 of 1999 against the petitioner Company on 23rd August, 1999 for recovery of an amount of Rs. 3,33,368/- with costs and interest at the rate of 18% per annum from 1st August, 1999 till payment thereof. It is the case of the petitioner that no process fee was paid by the respondent for service of summons, but an application was made by respondent to serve the summons of the above suit on the petitioner by substituted service " RPAD which was allowed by the Court. It is further the case of the petitioner that, on 3rd January, 2000, summons was sent to the factory of the petitioner at Jhagadia which was at the relevant time not the registered office of the petitioner, which according to the petitioner was the only place where such service could have been effected. That, the said summons was purportedly accepted by one Shri K. B. S. Rawat, an employee of the petitioner. It is the case of the petitioner that the said employee did not inform the petitioner about the receipt of the summons and neither did he ensure appearance in the proceedings, which resulted into an exparte decree being passed by the Ahmedabad City Civil Court, on 28th January, 2000, for an amount of Rs. 2,95,670/- with interest at the rate of 12% per annum from 1st May, 1999 till payment thereof.

( 3 ) IT is the case of the petitioner that there was substantial dispute between the parties on account of failure of the respondent to fulfill its contractual obligations. That, even if the claim of the respondent was accepted, there was an overpayment by the petitioner, as a result of which it had also demanded a refund of Rs. 2,30,075/- from the respondent vide letter dated 2nd April, 1999, which had not been produced by the respondent

( 4 ) ON 5th February, 2001, the respondent filed a Precept Application No. 91 of 2001 in the aforesaid Summary Suit under Section 46 of the Code of Civil Procedure, 1908 (the Code) for a direction to the Civil Judge (S. D.), Bharuch to attach movable goods of the petitioner. However, by an order dated 1st March, 2001, the said application for issuance of precept came to be rejected without issuing notice, by the Ahmedabad City Civil Court on the ground that the respondent did not show good-faith by taking prompt action on the decree.

( 5 ) ON 29th March, 2001, the respondent filed Special Execution Petition No. 15 of 2001 under order 21 Rule 11 of the Code against the petitioner, seeking execution of the exparte decree, claiming an amount of Rs. 3,66,328=58.

( 6 ) IT is the case of the petitioner that notice of the said Execution Petition was again served upon Shri K. B. S. Rawat, who appeared in the proceedings and purportedly admitted the liability to make payment to the respondent. On 19th September, 2001, the Executing Court issued a Jungam Warrant on the petitioner, which was served on the same day. It is the case of the petitioner that it was then, for the first time, that the petitioner came to know that a Summary Suit had been filed against it by the respondent, and that, a decree had been passed thereon and execution proceedings had also been initiated by the respondent That, the petitioner deposited the entire decreetal amount with the Executing Court and requested for time to take necessary action for setting aside the exparte decree. That, thereafter the petitioner issued a show cause notice to Shri Rawat for his aforesaid

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