IMPORTANT POINT
Process server cannot serve notice on an adult member of family of defendant without specific order to that effect being issued by court.

Devan Ramachandran, J. — The unexpendable imperative for courts to ensure valid and proper service of summons and notices to defendants in a suit and other proceedings can never be overstated. The one singular precaution that courts have to be always cognizant of, to avert challenge to its orders and proceedings, is to make sure that the parties to litigation are served as per the prescription of the statutory provisions relating to such.

2. Although the term “summons” is not defined in the Code of Civil Procedure (for short, “the CPC’), its proper service on the defendant is a fundamental rule of procedure. The significance of valid service of summons, in whatever way it may be effected, is that the defendant will be informed of the institution of the suit or the proceeding against him and he will thus be extended sufficient opportunity to resist it. The defendant’s actual knowledge of the suit or proceeding would, in most cases, become irrelevant if service of summons or notice on him, as per the statutory mandate, is shown beyond reasonable doubt.

3. The importance of this can never be lost sight of when we see that first defence and sometimes offence, to a suit or proceeding and to the orders and decrees passed by courts, that can be impelled by a defendant, is that he had not been validly served with summons or notice when the law mandated such service in a particular manner. It is well established that when the law provides something to be done in a particular manner then it has to be done in the same manner.

4. We have begun this judgment in the manner above because we see that the challenge against a decree against him, by the appellant herein, is built on the specific defence that summons was not served on him as is required under the provisions of the CPC and we are also drawn to believe that he has made out a case on such grounds.

5. First, to the most relevant facts:

This appeal has been filed by the appellant who is a defendant in O.S.No.41 of 2012 on the files of the Sub Court, Cherthala. The suit was filed by the respondent herein as plaintiff for return of money alleged to have been availed as a loan by the defendant on the strength of a demand promissory note.

6. It appears that the suit was decreed ex parte on 26.06.2012 but that no steps were taken by the appellant to have the same set aside. This led to execution proceedings being levied by the plaintiff, as E.P.No.125 of 2013, which is stated to be pending before the court below and a warrant of arrest against the appellant issued under Order 21 Rule 37 of the CPC.

7. On knowing of these proceedings, the appellant moved an application under Order 9 Rule 13 of the CPC to have the ex parte decree set aside, along with a prayer seeking to condone the delay of 1170 days in filing the said application. The court below, however, on an examination of the factual factors pleaded, found that there was no satisfactory explanation for the delay 1170 days and dismissed the application. It is against this order that the appellant has filed this appeal.

8. We have heard Sri.P.Sathisan, the learned counsel appearing for the appellant. Even though notice was served on the respondent, she has neither chosen to appear nor to have a counsel to represent her in these proceedings. We, therefore, are constrained to dispose of this appeal without hearing her version.

9. The case of the appellant before the court below in support of the application to condone the delay of 1170 days was that the notice or summons from the court below in the suit was not served on him. According to him, the endorsements on the duplicate copy of the summons only show that the notice issued by the court was accepted by his father on 02.04.2012, even though there was no specific order from the court below to have it served on a adult member of his family. The learned counsel appearing for the appellant invites our attention to Order 5 Rule 15 of the CPC and says that it is only when the defen