Case Note & Summary
The case arises from a money suit filed by the Bank of Maharashtra against M/s Sudha Offset and its proprietor Sujata Jayant Kulkarni, along with Jayant Kulkarni, for recovery of Rs.3,29,095.03. The suit was decreed ex-parte by the Civil Judge, Senior Division, Shrirampur on 31st July 2009. The defendants appealed, contending that they were not duly served with summons. The High Court examined the record and found that the process server's report and affidavit of service did not comply with Order 5 Rule 12 of the Code of Civil Procedure, 1908, as the summons were not tendered to the defendants personally. The court noted that the trial court had not recorded any satisfaction regarding due service before proceeding ex-parte. The High Court allowed the appeal, set aside the ex-parte decree, and remanded the matter to the trial court for fresh disposal after ensuring proper service of summons on the defendants. The court directed the parties to appear before the trial court on 15th February 2010.
Headnote
A) Civil Procedure - Service of Summons - Order 5 Rule 12 CPC - Ex-parte Decree - The trial court decreed the suit ex-parte without ensuring proper service of summons on the defendants. The process server's endorsement and affidavit of service were not in accordance with law, as the summons were not tendered to the defendants personally. The appellate court held that the decree was liable to be set aside and the matter remanded for fresh trial after due service. (Paras 1-5) B) Civil Procedure - Ex-parte Decree - Setting Aside - Order 9 Rule 13 CPC - The appellants challenged the ex-parte money decree on the ground of lack of service. The High Court found that the trial court had not recorded any finding that the defendants were duly served, and the service was defective. Consequently, the decree was set aside and the suit was restored to its original position for fresh adjudication. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in decreeing the suit ex-parte when the defendants were not duly served with summons as required under Order 5 Rule 12 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is allowed. The impugned judgment and decree dated 31st July 2009 passed by the learned Civil Judge, Senior Division, Shrirampur in Regular Civil Suit No. 1 of 2008 is set aside. The suit is restored to its original position. The parties are directed to appear before the trial court on 15th February 2010. The trial court shall proceed with the suit afresh after ensuring due service of summons on the defendants.
Law Points
- Service of summons
- Ex-parte decree
- Order 5 Rule 12 CPC
- Order 9 Rule 13 CPC
- Due service
- Affidavit of service
