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HIGH COURT OF ALLAHABAD
U.C. SRIVASTAVA, VIRENDRA KUMAR, JJ.
M/s. Sardar Cold Storage And Ice Factory Faizabad Road, Barabanki - Appellant
Versus
Punjab National Bank, Barabanki – Respondent
F.A.F.O. No. 172 of 1986
Decided on : Apr 21, 1988
EXPARTE DECREE - SETTING ASIDE - SERVICE OF SUMMONS - IRREGULARITY - EFFECT - AUCTION SALE - TITLE OF AUCTION PURCHASER - PROTECTION - ORDER 21 RULE 95 CPC - DELIVERY OF POSSESSION - ENTITLEMENT OF AUCTION PURCHASER - ORDER 21 RULE 94 CPC - CONFIRMATION OF SALE - EFFECT - TITLE OF AUCTION PURCHASER - RELATION BACK - ORDER 21 RULES 89 TO 92 CPC - APPLICATION TO SET ASIDE SALE - NON-FILING - EFFECT - ORDER 9 RULE 13 CPC - EXPARTE DECREE - SETTING ASIDE - GROUNDS - IRREGULARITY IN SERVICE OF SUMMONS - SUFFICIENCY - ORDER 5 RULE 9 CPC - SERVICE OF SUMMONS - MODE - ORDER 5 RULE 21 CPC - SERVICE OF SUMMONS - DEFENDANT RESIDING OUTSIDE JURISDICTION - ORDER 9 RULE 13 CPC, SECOND PROVISO - EXPARTE DECREE - SETTING ASIDE - IRREGULARITY IN SERVICE OF SUMMONS - SUFFICIENCY - ACKNOWLEDGEMENT RECEIPT - PRESUMPTION OF SERVICE - REBUTTAL - AFFIDAVIT OF DENIAL - SUFFICIENCY.
Fact of the Case:
Punjab National Bank filed a suit against a partnership firm and its partners for recovery of a loan. Summons were issued to the defendants by registered post with acknowledgement due. The defendants failed to appear in the case and an ex parte decree was passed against them. The partnership firm and its partners filed applications for setting aside the ex parte decree, which were dismissed. The bank executed the decree and sold the partnership firm's property in an auction sale. Bhupendra Singh purchased the property in the auction sale. The partnership firm and its partners filed an appeal against the dismissal of their applications for setting aside the ex parte decree. Bhupendra Singh filed a writ petition for delivery of possession of the purchased property.
Finding of the Court:
The court held that the service of summons on the partnership firm through one of its partners was sufficient service on all the partners. The court also held that the irregularity in the mode of service of summons was not sufficient to set aside the ex parte decree. The court further held that the auction purchaser, Bhupendra Singh, was a bonafide purchaser for value and his interest in the purchased property was protected and safeguarded under law. The court dismissed the appeal and allowed the writ petition.
Issues: 1. Whether the service of summons on the partnership firm through one of its partners was sufficient service on all the partners? 2. Whether the irregularity in the mode of service of summons was sufficient to set aside the ex parte decree? 3. Whether the auction purchaser, Bhupendra Singh, was a bonafide purchaser for value and his interest in the purchased property was protected and safeguarded under law?
Ratio Decidendi: 1. Under Order 30 Rule 3 CPC, in case persons are sued as partners in the name of their firm service of summons could be affected on one or more partners. Thus, service of summons effected in the instant case through the partner Amarjit Singh is to be considered as sufficient service of summons on all partners of the firm. 2. Second proviso to Order 9 Rule 13 CPC clearly provides that an exparte decree shall not be set aside merely on the ground that there has been irregularity in service of summons. In the instant case issue of summons by registered post only could, in our opinion, could of the most be said to be an irregularity in the mode of service of summons and such irregularity in itself is not sufficient to set aside the exparte decree. 3. Order 21 Rule 95 provides for delivery of possession of the auctioned property of the judgment debtor to the auction purchaser. The petitioner Bhupendra Singh, therefore, became entitled to delivery of possession of the property purchased in the auction sale.
Final Decision: The appeal was dismissed and the writ petition was allowed.
Virendra Kumar, J.
1. In the first appeal from order the defendant-appellants are seeking setting aside of the exparte decree dated 19-9-86 passed in the Regular Suit No. 28 of 1985 of the court of Small Causes, Barabanki and for restoration of the suit.
2. Petitioner Bhupendra Singh, has filed writ petition no. 3820 of 1987 for recovery of possession over the property purchased by him in the auction sale in execution of the exparte decree.
The appeal and writ petition have been heard together and are being disposed of by this common judgment.
3. Punjab National Bank, Barabanki, the plaintiff-respondent no. 1 filed a suit for the recovery of Rs. 10,35,604/- against the defendant-appellant no. 1 M/s. Sardar Cold Storage and Ice Factory (which was a partnership firm) and its partners namely defendant-appellant no. 2 Indra Singh, defendant-appellant no. 3 Sarwjit Singh and the defendant-respondent no. 4 Amar Jit Singh as well as other defendants-respondents (as guarantors) on the basis that the firm and its partners had taken loan from Punjab National Bank for which the defendants other than the partners had stood guarantors but, they defaulted in repayment of the loan. The suit was filed on 25-2-1985. On the same date the court ordered for "issue summons against defendants fixing 14-4-85 for written statement and 18-4-85 for issues." On the basis of this order summons were issued to them by registered post with acknowledgement due at their residential address which were of the places other than district Barabanki except the firm to which ...........................(sic) its office in Barabanki on 18-4-85, which was the date for framing of issues, the court held that all the defendants were sufficiently served. As no written statement was filed in the case, the suit was ordered to proceed exparte against the defendants and 30-4-1985 was fixed for exparte evidence, on 30-4-85 affidavit was filed from the side of the plaintiff, arguments were heard and exparte judgment was delivered decreeing the suit of the respondent no. 1 exparte. The three present appellants, defendants jointly applied for setting aside the exparte decree Another application to the same effect was moved by a few other defendant-judgment debtors. Both the applications for setting aside the exparte decree were dismissed on 19-9-86. Against the order the present appeal is preferred by the three defendants-appellants only. The interim order of stay of confirmation of auction sale of the Cold Storage and Ice Factory with its land was passed by this court on 2-3-1987 but the same was vacated on 16-4-87. In execution of the exparte decree, the Cold Storage and Ice Factory with its land were attached on 5-8-85. The same were sold by Public auction on 2-3 March, 1987, after issue of notice and proclamation. The highest bid for Rs. 13,50,000/- was of one Bhupendra Singh. On 20-4-87 the sale was duly confirmed by the concerned court which issued final certificate of sale on 14-5-1987 in favour of Bhupendra Singh, who could not get possession over the purchased property as the same was stayed by the Civil Judge, Barabanki in view of the High Court's order dated 24-4-1987 (in the instant appeal filed on 19-12-86) for maintaining status-qua between the parties regarding the possession of the sold property This order of the High Court for maintaining status-quo was subsequently extended. Bhupendra Singh the auction-purchaser filed writ petition no. 3820 of 1987 in this Court for delivery of the possession of the said property to him after quashing the order of stay of delivery of possession passed by the Civil Court in view of the High Court's order for maintenance of status- quo. In this writ petition the aforesaid partnership firm, its partners and guarantors to the loan as well as Punjab National Bank, Barabanki, besides the execution court of the Civil Judge, Barabanki, have been impleaded as the opposite parties. Notices have been served on the opposite parties.
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