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Issues involved: Setting aside a decree due to improper service of summons.
Summary: Issue 1: Proper service of summons on defendant No. 5 The defendant No. 5 filed a motion to set aside a decree passed in Suit No. 1347 of 1993, claiming that the suit summons were not served on her. The court initially proceeded ex-parte against defendant nos. 1 to 5 as the packets containing the summons were returned unclaimed. However, defendant No. 5 argued that the summons was sent to an erroneous address, and she resides in a different flat in the same building. The court agreed that the summons was not properly served on defendant No. 5. Issue 2: Application of Order 9 Rule 13 of the Code of Civil Procedure Order 9 Rule 13 of the Code allows a defendant to apply for setting aside a decree passed ex-parte if they prove that the summons was not duly served. The court held that since the summons was not properly served on defendant No. 5, the decree is liable to be set aside under Order 9 Rule 13 of the Code. Issue 3: Distinction between different rules under the Code The plaintiff argued that the decree was passed under Order 8 Rule 10 of the Code, which would not apply to setting aside the decree under Order 9 Rule 13. However, the court clarified that the decree was passed under Order 9 Rule 6, as the court proceeded ex-parte against the defendants. Therefore, the judgment cited by the plaintiff was deemed not applicable to the present case. Conclusion: The court allowed the notice of motion, setting aside the ex-parte decree dated 6.11.1998 against defendant No. 5. The suit was to be restored on file and heard on merits, with the defendant directed to file a written statement within 12 weeks. The court emphasized expediting the hearing of the suit due to its age since filing in 1993.
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