Code of Civil Procedure, 1908 – Or. IX, r.13; Or. V, r.9(5) – Respondent no.2 filed suit for recovery against respondent no.1 alleging that he failed to refund the money received by him towards part sale consideration for sale of property – Summons sent to respondent no.1, received back with postal endorsement of refusal – Eventually, suit decreed ex-parte in favour of respondent no.2 – In execution, the property was directed to be auctioned wherein the appellant was the highest bidder – Respondent no.1 filed application u/Or. IX, r.13 for setting aside the ex-parte decree – Dismissed – Appeal by respondent no.1 – Allowed by High Court – Respondent no.2 filed application seeking recall thereof – Dismissed – Held: Respondent no.1 was not vigilant – Auction was allowed to be undertaken – Thus, disentitled from claiming any relief as was prayed for – Orders passed by High Court set aside – Application filed by respondent no.1, dismissed – General Clauses Act, 1897 – s.27.
Allowing the appeals, the Court
HELD: The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that 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. The order dated 19.02.1997 was thus completely in conformity with the legal requirements. 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. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1. Thus, the fact that the auction was allowed to be undertaken, Respondent No. 1 was disentitled from claiming any relief as was prayed for. Further, after completion of proceedings in auction, sale certificate was also issued in favour of the Appellant. The orders dated 21.04.2006 and 18.10.2019 passed by the High Court are set aside and the application preferred by Respondent No.1 under Order IX Rule 13 of the Code is dismissed. [Paras 19-22][20-GH; 21-A, E-H; 22-A-B] C.C. Alavi Haji v. Palapetty Muhammed and Anr. AIR 2007 SC (Supp) 1705 – relied on.
Jagdish Singh v. Natthu Singh AIR 1992 SC 1604; State of M.P. v. Hiralal & Ors. (1996) 7 SCC 523; V. Raja Kumari v. P. Subbarama Naidu & Anr. (2004) 8 SCC
774 : [2004] 5 Suppl. SCR 882 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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