Case Note & Summary
The case involves two writ petitions filed under Article 227 of the Constitution of India challenging an ex parte decree passed in a partition suit (O.S. No. 18/2015) by the Senior Civil Judge, Babaleshwar. The petitioners, who are legal representatives of the deceased original defendant Sangappa Hadimani, contended that the ex parte decree was passed without proper service of summons. The trial court had proceeded ex parte against the defendant on 27.06.2016, and later passed a preliminary decree on 27.02.2019. The petitioners argued that the service of summons was not in accordance with Order V Rule 17 of the Code of Civil Procedure, 1908, which requires that when the defendant refuses to accept service or cannot be found, the summons shall be affixed on the outer door or some conspicuous part of the house, and also on the court premises. The process server's report did not indicate that a copy was affixed on the court building. Additionally, no proper service affidavit was filed. The High Court examined the records and found that the trial court had not complied with the mandatory procedure. The court noted that the ex parte decree was passed without ensuring valid service, which is a jurisdictional error. Consequently, the High Court allowed the writ petitions, set aside the ex parte decree and all subsequent proceedings, and remanded the matter to the trial court for fresh disposal in accordance with law. The court directed the trial court to give an opportunity to the petitioners to file their written statement and proceed afresh. The judgment emphasizes the importance of strict compliance with procedural rules for service of summons to ensure natural justice.
Headnote
A) Civil Procedure - Ex Parte Decree - Service of Summons - Order V Rule 17, Order IX Rule 6, Code of Civil Procedure, 1908 - The petitioners challenged an ex parte decree in a partition suit on the ground that summons were not properly served as per Order V Rule 17, which requires affixture of summons on the court premises when personal service is not possible. The trial court had proceeded ex parte without ensuring compliance with the mandatory procedure. The High Court held that the ex parte decree was unsustainable due to procedural irregularities, as the service of summons was not in accordance with law, and set aside the decree, remanding the matter for fresh consideration. (Paras 1-10) B) Civil Procedure - Affixture of Summons - Order V Rule 17 CPC - The court noted that the process server's report did not indicate that a copy of the summons was affixed on the court building, which is a mandatory requirement under Order V Rule 17. The absence of such affixture and the lack of a proper service affidavit rendered the service invalid. The High Court emphasized that strict compliance with procedural rules is essential for a valid ex parte decree. (Paras 5-8) C) Constitutional Law - Writ Jurisdiction - Article 227 of the Constitution of India - The High Court exercised its supervisory jurisdiction under Article 227 to correct the procedural error committed by the trial court. The court held that the writ petition was maintainable to challenge the ex parte decree as the trial court had acted without jurisdiction by proceeding ex parte without proper service. (Paras 1, 10)
Issue of Consideration
Whether the ex parte decree passed in the partition suit is sustainable when the service of summons was not effected in accordance with Order V Rule 17 of the Code of Civil Procedure, 1908, and whether the trial court erred in proceeding ex parte without proper service.
Final Decision
The High Court allowed the writ petitions, set aside the ex parte decree dated 27.02.2019 and all subsequent proceedings in O.S. No. 18/2015, and remanded the matter to the trial court for fresh disposal. The trial court was directed to give an opportunity to the petitioners to file their written statement and proceed afresh in accordance with law.
Law Points
- Ex parte decree
- service of summons
- Order V Rule 17 CPC
- Order IX Rule 6 CPC
- affixture of summons
- procedural irregularity
- Article 227 of Constitution of India
