Unsatisfactory service of summons and the death of a defendant before the passing of an exparte decree can lead to the setting aside of the decree.

1. - The present revision petition has been filed under section 115 of CPC challenging the order dated 31.5.2007 passed by the Addl. Civil Judge (JD) Bundi (hereinafter referred to as the "trial court") in Civil Misc. Application No.24/2000, whereby the trial court has set aside the exparte decree dated 12.8.1998 passed in favour of the petitioner-plaintiff in Civil Suit No.244/1995.

2. It has been submitted by learned counsel Mr.SS Hora for the petitioner that the respondent no.1 and his father Shri Ramcharan, who were the original defendants in the suit, though were duly served, did not file their appearance and therefore, an exparte decree was passed in favour of the petitioner plaintiff. According to him, the said defendants were also aware about the other revenue proceedings pending between the parties in which the reference was made of the Civil Suit and also the exparte decree passed in the suit, however the respondents filed the application for setting aside the exparte decree under Order 9, Rule 13 of CPC on frivolous grounds. According to him, the order passed by the trial court being without jurisdiction, the same deserves to be set aside.

3. However, the learned counsel Mr. Amit Jindal for the respondents submitted that apart from the fact that the defendants were not duly served with the summons in the suit,the defendant Shri Ramcharan had already expired during the pendency of the suit and therefore the decree passed against the dead person was a nullity. According to him, the order passed by the trial court being just and proper, this court should not interfere in the limited jurisdiction under section 115 of CPC.

4. In the instant case, it appears that the petitioner-plaintiff had filed the suit seeking cancellation of sale deed dated 11.6.1989 allegedly executed by one Sualal in favour of respondent no. 1 Kailash Chandra on the ground that the said Sualal had already executed a will dated 5/9.3.1987 before he passed away on 4.6.1992. The said suit was filed by the petitioner against the respondent no.1 Kailash Chandra and his father Shri Ramcharan. It appears that the summons having been issued by the trial court, the same were sought to be served through process server. As per the case of the plaintiff, since the defendants had refused to accept the summons, the process server had affixed the same outside the house of the defendants. Thereafter, the exparte decree came to be passed on 12.8.1998 in favour of the petitioner-plaintiff and against respondent no.1 and his father. The present respondent thereafter filed an application on 17.8.2000 seeking setting aside the exparte decree under Order 9, Rule 13 of CPC. The said application was resisted by the petitioner-plaintiff, however, the trial court allowed the said application and set aside the exparte decree passed in the suit, as per the impugned order dated 31.5.2007.

5. Having considered the submissions made by learned counsel for the parties and to the documents on record more particularly the impugned order passed by the trial court, it appears that the trial court was not satisfied about the service of summons to the concerned defendants in the suit. The trial court also has observed that the defendant no.2 Shri Ramcharan had already expired during the pendency of the suit prior to passing of exparte decree and therefore, also the decree was liable to be set aside. There is some substance in the submission made by learned counsel Mr. Hora for the petitioner that the respondents were aware of the pendency of the suit and also the passing of exparte decree in the suit, however he has failed to point out as to how the summons were duly served on the concerned defendants in the suit. From the evidence of the process server, examined by the petitioner in the application, it appears that he had not complied with the provisions contained in Rule 17 Order 5 of CPC, by not submitting the report signed by him as regards the due service. It is also not in di