Ex parte Decree – Process server should be examined to establish service of summons—In case of non examination of bailiff ex parte proceedings are liable to set aside.

Mr. B.S.Walia, J. (Oral):- Petitioners seek setting aside of impugned judgment Annexure P-1 dated 09.09.2017 passed by the learned District Judge, Fatehgarh Sahib, dismissing appeal against order Annexure P-2 dated 08.04.2016 passed by the learned Civil Judge (Jr. Div.), Amloh in Civil Misc. No.23/24.07.2016 dismissing the application under Order 9 Rule 13 CPC seeking setting aside of exparte judgment and decree dated 17.02.2010 as well as exparte order dated 09.11.2006 in Civil Suit No.291 of 18.07.2006 in case titled as ‘Gurdish Singh Vs. Prabhawati Devi and another’ as well as subsequent proceedings thereto.

2. Facts of the case as set up in the application under Order 9 Rule 13 CPC are that the respondent-plaintiff filed a suit for possession on the basis of sale deed dated 06.05.2004 and the same was decreed exparte by the learned Trial Court on 17.02.2010 against the defendants-petitioners, that defendant-petitioner No.1 was an illiterate housewife while defendantpetitioner No.2 only knew how to sign but could not read or right and the respondent-plaintiff being a clever person had committed fraud with the defendants-petitioners and got exparte judgment and decree. Plea was that the defendants-petitioners never received any summons from the Court nor was any publication effected upon the defendants-petitioners and they had no knowledge of the suit or the proceedings in the same, therefore could not appear before the Court, leading to their being proceeded exparte vide order dated 09.11.2006, eventually leading to exparte judgment and decree dated 17.02.2010. It was further pleaded that the defendants-petitioners acquired knowledge of the exparte judgment and decree on 28.06.2010 when the respondent-plaintiff along with bailiff came to their house to take possession of the house and told them that the plaintiff-respondent had obtained a decree against them whereupon the defendants-petitioners approached engaged a counsel who inspected the case file 16.07.2010 i.e. the first opening day of the Court after summer vacations, therefore the application under Order 9 Rule 13 of the CPC was filed within limitation from the date of knowledge. It was further pleaded that the absence of the defendants-petitioners from the Court was not intentional and they being contesting defendants were required to be heard on merit, that there were valid and sufficient grounds for the setting aside of exparte order dated 09.11.2006 as well as exparte judgment and decree dated 17.02.2010.

3. Upon notice of the application, the plaintiff-respondent appeared and contested the application by filing reply that the defendants-petitioners were duly served in the suit, therefore, there was no question of any publication, that despite valid service, the defendants-petitioners, did not appear intentionally, therefore, were rightly proceeded exparte on 09.11.2006 and the suit decreed vide judgment and decree dated 17.02.2010. It was further stated that in the execution proceedings, the Court passed order for delivery of possession of the property in question to the plaintiff and the Naib Tehsildar, Mandi Gobindgarh was deputed to deliver the possession of the suit property to the respondent/plaintiff/decree holder and when the concerned Kanugo deputed by the Naib Tehsildar went to effect delivery of possession, the defendants-petitioners obstructed delivery of possession on which the Kanugo made a report seeking police help. It was further stated that the application moved by the defendants-petitioners was not within time as personal service having been effected, limitation could not be said to commence from the date of knowledge as the defendants-petitioners had full knowledge and were aware of the pendency of the suit filed by the plaintiff against them and they had intentionally and willfully not put in appearance leading to exparte decree being passed in favour of the respondent-plaintiff, that the judgment and decree was valid, therefore, the