Read Time: 05 minutes

A Bench of Justices UU Lalit and S Ravindra Bhat has held that an ex-parte decree cannot be set aside under Order IX Rule 13 of the Code of Civil Procedure when the aggrieved party had refused to accept summons issued in their name during the pendency of the suit.

These observations were made while hearing an appeal filed against the order of the Allahabad High Court which had allowed the defendant’s application to set aside the decree.

A suit was filed for recovery of money along with interest submitting that the defendant (Respondent No.1) had failed to refund Rs.22,400/- received by him towards part sale consideration for sale of property.

When the summons were sent to Respondent No.1 by registered post, they were received back with postal endorsement of ‘refusal’.

After the suit was decreed ex-parte, execution proceedings were initiated. The defendant duly acknowledged the receipt of auction notice with respect to the suit property.

Once the auction was undertaken, the respondent preferred an application under Order IX Rule 13 of the Code.

This application was rejected by the Trial Court but the same was allowed by the High Court while observing that the defendant was not vigilant as he ought to have been but his "conduct does not on the whole warrant to castigate him as an irresponsible litigant".

The Bench noted that as per Sub-Rule (5) of Order V Rule 9 of CPC, if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.

“Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code.”, noted the Apex Court.

It was thus held that the High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant and wrongfully proceeded to grant relief in favour of Respondent No.1.

The appeals were accordingly allowed and the order passed by the Allahabad High Court were set aside.

Case Title: Vishwabandhu v Sri Krishna And Anr