Proper service of summons is essential for the validity of ex parte decrees; lack of such service can justify reopening a case.

ORDER

Petitioner obtained an ex parte decree against the respondents long back on 24-09-1999 and after about 10 years on 30-07-2009 respondents sought to set aside the ex parte decree by condoning the delay. Learned Munsiff was not impressed by the cause stated by respondents for delay and consequently dismissed the application. Respondents took up the matter in appeal. Appellate court was not impressed by the reasoning adopted by learned Munsiff to disallow the request of respondents to re-open the case and gave them an opportunity to contest the case. Appellate court allowed the C.M.Appeal and set aside the ex parte decree. That judgment is under challenge at the instance of petitioner in this revision petition. Learned counsel for petitioner has strenuously contended that appellate court was not justified in its finding that respondents had sufficient cause for not filing application on time. According to the learned counsel course of conduct on the part of respondents in the execution of the ex parte decree indicated lack of bonafides on their part.

2. Some facts are necessary to appreciate the contention raised by learned counsel and to decide whether appellate court was justified in reopening the case. Petitioner filed the suit for recovery of Rs.87,769.31/- based on certain demand promissory notes allegedly executed by the respondents. The suit was filed on 08-02-1999. Learned Munsiff ordered summons to the respondents. The process server was entrusted to serve summons on the respondents in their address given in the plaint. On 13-02- 1999, ie, just 5 days after institution of the suit process server attempted to serve summons and found the house of respondents locked and unable to find the respondents for personal service, he served the summons by affixture the same day as provided under Order 5 Rule 17 of the Code of Civil Procedure (for short, “the Code”). Following that an ex parte decree was passed on 24-09- 1999. Obviously learned Munsiff accepted the report of Amin as to the sufficiency of service of summons on the respondents. Petitioner being armed with a decree passed on 24-09-1999 in his favour chose to keep quite for time and filed execution petition (E.P.No.80 of 2008) in the year 2008 ie, after about 9 years of obtaining the decree. Notice under Order 21 Rule 22 of the Code was served on respondents. They entered appearance through counsel on 11-07-2008 and execution petition was posted on 13-07- 2008. Executing court passed an order accordingly and issued notice to respondent No.2 under Order 21 Rule 37 of the Code. E.P was posted for objection of respondent No.2 and in the meantime there was a request for time for payment of the amount and the case was posted on 23-10-2008. It is while so on 30-07-2009 respondents filed I.A.Nos.3294 of 2009 and 3295 of 2009 to set aside the ex parte decree and to condone the delay. That application was opposed by petitioner contending that there was due service of summons on the respondents, at any rate they had information about pendancy of the suit. Even if it is accepted that there was no service of summons application to set aside the ex parte decree is hopelessly barred by limitation as the application is not preferred immediately after service of notice under Order 21 Rule 22 of the Code. Learned counsel contended that finding of the appellate court is not correct.

3. Certain things loom large on the case pleaded by petitioner. As I stated there was no attempt on the part of process server to serve notice under Order 5 Rule 15 of the Code on finding that respondents were not available at the address given in the plaint and the house was seen locked on 13-02-1999 and on the same day he served summons by affixture without even attempting to serve summons under Order 5 Rule 15 of the Code. It is seen that learned Munsiff without giving proper application of mind on the report of Amin as to whether there was proper service of summons on the respondents chose to pass an