Irregularity in the service of notice can lead to setting aside of orders and allowing further proceedings.

JUDGMENT :

Heard Mr. C. Modi, learned counsel for the petitioner. None has appeared for the sole respondent.

2. The petitioner has filed this petition under Article 227 of the Constitution of India read with Section 115 of the CPC praying for quashing of the impugned order, dated 14.08.2023 passed by the learned District Judge, Yupia in connection with Money Appeal No.02/2023 filed against the Ex-parte decree/order, dated 05.04.2018 passed by the learned Civil Judge (Senior Division), Yupia in Money Suit No. 102/2015.

3. The factual matrix leading to filing of this revision petition is that in the year 2014, the petitioner along with five other persons took a loan of Rs.3,00,000/-(Rupees Three Lakhs) from one Smti. Nime Yangfo for a common purpose. While lending the said money, the lender had taken 2 (two) strings of local ornaments (Tadok) as the security of the said loan amount but the petitioner along with other persons who took the loan have failed to repay the same. Subsequently, an agreement was executed between the petitioner on 27.02.2014 amongst the borrowers for paying back the said loan amount to the lender. But as they failed to repay the loan amount, one suit was instituted vide Money Suit No. 102/2015.

4. It is stated in the petition that the petitioner had no knowledge about the pendency of Money Suit till he came to know about the execution petition in connection with the said Money Suit. After coming to know about the pendency of the execution petition against him, he filed an appeal vide Money Appeal No. 02/2023 before the Court of District Judge, Yupia. After hearing the petitioner, the learned District Judge, Yupia on 13.07.2023 stayed the execution proceeding vide execution petition No. 10/2018 arising out of Money Suit No. 102/2015 and the date was fixed on 14.08.2023.

5. On 14.08.2023, the District Judge, Yupia held that the impugned order in the ex-parte proceeding was passed by the learned Civil Judge, Yupia in the year, 2018 in connection with Money Suit No.102/2015. But the learned counsel for the appellant did not file any application for condoning the delay of about 2 (two) years and accordingly, the appeal was dismissed on being not maintainable.

6. It was urged by the learned counsel for the petitioner that the petitioner had no knowledge about the institution of Money Suit No. 102/2015. As per order, dated 11.12.2015, notice was issued to the petitioner as defendant along with other defendants. On subsequent date though notice was not served to the petitioner but the ex-parte order was passed without giving any opportunity to the petitioner to make his submission in connection with Money Suit No. 102/2015.

7. Under such backdrop, the learned counsel for the petitioner prayed for setting aside the impugned order, dated 14.08.2023 passed by the District Judge, Yupia with a direction to the learned Court below to adjudicate the matter afresh by allowing the petitioner to proceed with the case accordingly.

8. Though, the petitioner had taken steps to the respondent through the dasti mode of service but as per the report, the respondent refused to accept the same. From the conduct of the respondent, it appears that the respondent is not interested to appear and make his submission in connection with the present revision petition.

9. I have considered the submission of the learned counsel for the petitioner.

10. It appears from the order, dated 11.12.2015 passed by the learned Civil Judge (Senior Division) Yupia, that notice was issued to the petitioner as defendant and subsequent date was fixed on 28.01.2016 & 4.03.2016. As per order, dated 04.03.2016, it is reflected that summons issued to the defendant were not returned after service and the plaintiff was directed to issue fresh summons to the defendant by fixing date on 22.04.2016 and on the same date, the learned Civil Judge, Senior Division, Yupia had passed the following order, which is extracted hereinbelow for ready reference:-

“…Order 5, Rule 9, Sub-Ru