The provisions of Order V Rules 1, 5, and 8 of the Civil Procedure Code are mandatory and must be strictly followed. Non-compliance with these provisions may result in the summons being considered irregular and the subsequent ex parte decree being set aside.

J.G. Chitre, J.

1. The appellants are hereby assailing correctness, propriety and legality of the judgment and decree which has been passed by XVth Additional District Judge, Indore in the matter of Civil Suit No. 106 of 93 wherein ex-parte decree has been passed against the appellants (original defendants.)

2. The respondent (original plaintiff) filed a suit for recovery of Rs. 4,24,669/- from the appellants on account of non payment of loan which was granted by the respondent to the appellant under cash-credit limit. The interest was agreed to be paid at the rate of 0.5% above the bank rate i. e. 17% per annum. Summonses were issued to the appellants on 25.6.93 directing them to remain present before the Court in respect of 'Darkhwast" hearing on 19.7.93. Appellant Nitin Pandit attended the Court of VIIth Additional District Judge, Indore on that date but learnt that the suit was transferred to the Court of XVth Additional District Judge, Indore for disposal according to law by the order of District Judge, Indore. Thereafter the suit was fixed for hearing and on that date the appellants were absent. The proceeding was directed to proceed against the appellants ex parte and an ex parte decree was passed against the appellants.

3. The appellants submitted an application in view of provisions of Order IX rule 13. C. P. C. for setting aside the ex parte decree. The trial Court conducted the enquiry and concluded that no case was made for setting aside ex parte decree. The appellants have preferred this appeal challenging the correctness propriety and legality of that judgment and decree.

4. Shri M. G. Upadhyaya, learned counsel appearing for the appellants submitted that summonses which were issued in this matter were not in accordance with the provisions of Civil Procedure Code and, therefore, the appellants were not given the information of the date of hearing of the suit. He submitted that the Court should have either issued the summonses for the purpose of directing the appellants to file written statement or to attend the Court for the purpose of settling the issues. He submitted that as it was not done by the trial Court, trial Court was not right in passing the ex parte decree against the appellants. Shri Upadhyaya also submitted that when the Court in-tended to decide the suit finally, the summonses should have mentioned that clearly so as to give intimation to the appellants that they were to attend on 19.7.93 when the suit was to be heard finally. In this context he made reference to the provisions of Order V C. P. C. as well as to the forms prescribed for the purpose of sending the summonses. Shri Upadhyaya submitted that prejudice has been caused to the appellants as with out due intimation to them the ex parte decree has been passed against them which needs to be set aside.

5. Shri Kale, learned counsel appearing for the respondent, submitted that no prejudice has been caused to the appellants because the summonses were duly served on wife of appellant Nitin Pandit who was adult member of the family. He further submitted that appellants Nitin Pandit had gone to the Court of 7th Addl. District Judge, Indore for the purpose of making enquiry about the suit but he did not make due enquiry in the Court of 15th Addl. District Judge, Indore where the suit was transferred. In this context he made reference to the statement of Nitin Pandit recorded during the course of enquiry which was conducted by trial Court in context with the application preferred by the appellants in view of provisions of Order IX rule 13.

6. Shri Upadhyaya further argued that the summonses which were issued to the appellants were in respect of Civil Suit No. 108/93 and the judgment and decree has been passed by the trial Court in Civil Suit No. 106/93.

Pointing out this, Shri Upadhyaya, argued that the appellants did not have due intimation of the final herring of Civil Suit No. 106/93 and, therefore, ex parte decree which has been passed against them