1983 (8) TMI 308 - HC - Indian Laws

Summary

Issues:
1. Dismissal of application under Order 9, Rule 13 for setting aside an ex parte decree.
2. Allegations of improper service of summons and resistance to execution of decree.
3. Barred application by limitation.
4. Challenge to decision in revisional application.
5. Validity of substituted service under Order 5, Rule 20.
6. Discrepancies in evidence regarding knowledge of decree.
7. Jurisdictional errors in trial court's actions.
8. Dismissal based on limitation without proper consideration of evidence.
9. Setting aside ex parte decree and restoration of suit.

Analysis:

The petitioner filed an application under Order 9, Rule 13 to set aside an ex parte decree in a suit for eviction. The trial court and appellate court dismissed the application, citing that the petitioner failed to prove sufficient cause for non-appearance and that the application was barred by limitation. The petitioner challenged this decision in a revisional application, arguing against the validity of the service of summons and the knowledge of the decree.

The petitioner contended that there was no proper service of summons, challenging the substituted service under Order 5, Rule 20. The petitioner's counsel argued that the evidence of resistance to execution of the decree was unreliable due to material discrepancies. The petitioner claimed to have known of the decree only on Feb. 12, 1981, and immediately filed the application the next day.

On the other hand, the opposite party argued that the petitioner was avoiding service of summons, justifying the substituted service under the law. They maintained that the petitioner's knowledge of the decree on June 17, 1980, made the application time-barred and an attempt to delay execution.

The Court found jurisdictional errors in the trial court's actions regarding service of summons and noted discrepancies in the evidence regarding the petitioner's knowledge of the decree. The appellate court's dismissal based solely on limitation without proper consideration of evidence was criticized. Ultimately, the Court allowed the revisional application, setting aside the ex parte decree and restoring the suit, directing the defendant to file a written statement within a specified timeline for further proceedings.

In conclusion, the Court held that the decisions of the lower courts were unsustainable, allowing the revisional application without costs and setting aside the impugned orders to restore the suit for further adjudication by the trial court.