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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

MISC. APPEAL No. 1039 of 2018

SANJAY KUMAR PATHAK AND OTHERS

Versus

MANOJ KUMAR RAI AND OTHERS

WITH

MISC. PETITION No. 622 of 2017

MANOJ KUMAR RAI

Versus

SANJAY KUMAR PATHAK AND OTHERS

MISC. PETITION No. 315 of 2018

MANOJ KUMAR RAI

Versus

SANJAY KUMAR PATHAK AND OTHERS

………………………………………………………………………………..

Appearance:

Shri T. S. Ruprah Senior Advocate with Shri Uma Shankar Tiwari, Advocate for

the petitioners.

Shri Vinod Mishra-Panel Lawyer for respondent-State.

Shri Kapil Rohra-Advocate for the private respondents

………………………………………………………………………………..

(O R D E R)

(Reserved on : 05/01/2026)

(Pronounced on:03/02/2026)

Since all the 3 cases arise out of the same judgment and decree, therefore they

are being heard analogously and are being decided by this common order.

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 06-02-2026

16:55:20

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2. M.P. No. 622/2017 and MP 315/2018 have been filed under Article 227,

challenging the orders dated 09-08-2017 and 18-12-2017 passed during course of the

execution proceedings at the instance of the decree holder. He has challenged the

interlocutory orders passed in course of the execution proceedings. By the order dated

09-08-2017, the executing court has allowed the application for substitution of legal

representatives of objector of Devi Singh Pathak and by another order dated 18-12-

2017, the executing court has allowed the application for amendment of objections

filed by objector Devi Singh Pathak at the instance of his legal representatives. Devi

Singh Pathak happens to be father of the original defendant No. 1 Sanjay Kumar

Pathak.

3. M.A. No. 1039/2018 has been filed by the original defendants challenging the

order passed by the Trial Court whereby the Trial Court has rejected application for

setting aside ex-parte decree under Order 9 Rule 13 CPC by rejecting application for

condonation of delay under Section 5 Limitation Act and consequently also rejected

the application under Order 9 Rule 13 CPC for setting aside ex-parte decree.

4. This court first takes up M. A. No. 1039/2018 which is in the matter of setting

aside ex-parte decree because if the said case is allowed in favor of the judgment

debtors, then the miscellaneous petitions challenging interlocutory orders during course

of execution proceedings shall render infructuous. Therefore, M. A. No. 1039/2018 is

taken up.

5. By way of the present appeal, challenge is made to the order passed by the Trial

Court dated 29.01.2018 whereby the Trial Court has rejected the application under

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 06-02-2026

16:55:20

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Section 5 Limitation Act for condonation of delay in filing application for setting aside

ex-parte decree and consequently rejected the application for setting aside expiry

decree.

6. There was a suit for specific performance filed against the present petitioners

which had been decreed on 02-02-2010 and against the said ex-parte judgment and

decree dated 02-02-2010. The application under Order 9 Rule 13 CPC along with

application for condonation of delay was filed on 18-07-2011 which was with a delay

of about 1 year 3 months and the Trial Court by the impugned order dated 29-01-2018

has rejected the application for condonation of delay and consequently rejected the

application for setting aside ex-parte decree.

7. Learned counsel for the appellants has vehemently argued that there was no

effective service during course of the proceedings of the suit and that the provisions of

Order 5 Rule 17 CPC were not properly complied with by the process server nor the

Trial Court had ensured compliance of the said provisions under Order 5 Rule 17 CPC

which mandates that if the party refuses to accept the summons or sign the

acknowledgement, then unless a copy of the summons is affixed on the conspicuous

part of the house where the defendant resides or carries out business, there would not

be any effective service.

8. Reliance has