CAV Order

1. Appellant has filed this appeal under Order 43 Rule 1 (d) of the Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.) questioning legality and sustainability of the impugned Digitally order dated 06.05.2019 whereby learned Second Additional signed by SHAYNA KADRI District Judge, Bilaspur has dismissed the application filed under Order 9 Rule 13 read with Section 151 of C.P.C..

2. Facts relevant for disposal of this appeal are that appellant had submitted an application under Order 9 Rule 13 of C.P.C. pleading therein that she was married in the year 1987 with Maninder Singh Bakshi. After marriage, she is residing at Bhopal in her matrimonial home on the address – 11, Bright Colony, Idgah Hills,Opposite St. Joseph’s Convent School, Bhopal, Madhya Pradesh, 462001. Address of petitioner in the passport as also voter ID card, Bhopal is mentioned. During life time of her father, she was given property, a flat, which is at Vidya Apartment constructed on 801 square feet of land. Notice of Civil Suit No. 41-A/2015 was not served upon her on her address at Bhopal and she was proceeded ex-parte. Ex- party judgment and decree also was passed against her. Judgment and decree passed ex-parte is without providing opportunity of hearing to her.

3. Application submitted by appellant was replied by non-

applicant No. 1 pleading therein that appellant, during life time of her father, appeared along with him in the proceedings and was aware of the Civil Suit. She was residing in house No. B-3 Minocha Colony, Bilaspur on the date of judgment and decree passed in Civil Suit i.e. 30.06.2017. After death of original defendant, notice was sent to legal representative of deceased/defendant on the address as mentioned above. The notice was served upon her on 18.11.2016, upon which, she remained absent and only thereafter, she was proceeded ex-

parte. Judgment and decree, after conclusion of trial, is in accordance with law, hence, it does not call for any interference and application under Order 9 Rule 13 read with Section 151 of C.P.C. be rejected. Non-Applicant No. 2 and 3 also submitted reply pleading that applicant did not received notice in terms of order 5 Rule 1 and 2 of C.P.C., hence, judgment and decree be set-aside. Learned Court considering application under Order 9 Rule 13 read with Section 151 of C.P.C., upon hearing parties, came to conclusion that appellant was aware of the proceedings and she was residing at Bilaspur on the date of passing of judgment and decree. It was also observed by learned Court while considering application under Order 9 Rule 13 read with Section 151 of C.P.C. that after death of her father, appellant did not chose to appear before the concerned Court, notice was sent to legal representative of deceased by registered post which was returned mentioning therein "unclaimed". Non-appellant No. 2 & 3, who are mother and brother of appellant appeared in the proceedings and dismissed the application.

4. Learned counsel for the appellant would submit that appellant was substituted after death of her father / defendant along with other legal representative. Notice was issued, however, it is the case that notice was not served upon appellant. He submits that knowledge of the case prior to impleadment of appellant is having no consequence. Appellant was impleaded as party - defendant only after death of her father and once notice is ordered by learned trial Court, it was for the trial Court to consider that whether notice is served upon appellant in accordance with law. Learned trial Court fell into error of not considering that regular notice issued to be served through process server, there is no mention that it was served upon any of the family member of appellant. Proceedings under Order 5 has not been followed and therefore, finding recorded by learned trial Court merely on the ground that when appellant was earlier appearing along with her father, she was aware of the pendency of proceedings. In supp