IMPORTANT POINT
Setting aside ex-parte decree – Defendant has to show and satisfy that summons of suit was not duly served and that defendant was prevented by sufficient cause from appearing when suit was called upon for hearing.

ORDER

Heard learned advocate Mr. Rajan J. Patel for appellants and learned advocate Mr. Rohan N. Majmudar for learned advocate Mr. N.K. Majmudar for respondent Nos. 1 and 1.2.

2. Upon the consent and request of learned advocates appearing for the respective parties, this matter is taken up for final hearing.

3. By way of this Appeal from Order, the appellants have challenged the order dated 04.12.2023 passed by the learned Auxiliary Chamber Judge, City Civil Court, Ahmedabad in Civil Miscellaneous Application No. 839 of 2022, whereby an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure filed by the present appellants.

4. The brief facts leading to this Appeal from Order are as under:

4.1 The deceased respondent No. 1-Thakorbhai Ishwarbhai Patel filed Miscellaneous Civil Suit No. 4170 of 2022 against the respondent Nos. 2 to 5 and the deceased appellant-Lalitaben Rasiklal Gandhi. The said suit came to be decreed on 21.04.2018. Thereafter, the Execution Petition No. 237 of 2021 came to be filed and the decree of possession was executed on 26.08.2022. Thereafter, the appellants herein filed Civil Miscellaneous Application No. 839 of 2022 and a Civil Suit No. 1396 of 2022 on the same date i.e. on 28.09.2022. The application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure came to be dismissed by the learned Trial Court on 04.12.2023 and the Civil Suit No. 1396 of 2022 under Order 7 Rule 11 of the Code of the Civil Procedure also came to be dismissed by the learned trial Court on 27.09.2023.

4.2 Being aggrieved and dissatisfied with the rejection order of the said application, the present appellants are before this Court.

5. Learned advocate for the appellants has submitted that the summons of the Civil Suit No. 4170 of 2022 was not duly served upon the present deceased-appellant who was the original defendant No. 5. It is further submitted that the defendant No. 5 was not residing at the address shown in the cause-title of the plaint where the summons was affixed on the conspicuous part of the property. It is further submitted that no opportunity was given to the defendant No. 5 in defending the suit. During the pendency of the suit, the defendant No. 5-Lalitaben Rasiklal Gandhi expired on 21.07.2023, however, the plaintiff did not bring the legal heirs of the deceased-defendant No. 5 on record and the suit was decreed. It is further submitted that the heirs were not brought on record within the stipulated time, the suit automatically stood abated for want of bringing the heirs of defendant No. 5 on record. The learned advocate for the appellants has placed reliance upon the provisions of Order 9 Rule 13 of the Code of Civil Procedure which are reproduced herein-under:

“13. Setting aside decree ex-parte against defendants - In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any Sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

Explanation - Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other