Case Note & Summary
The appellant/plaintiff filed a suit for specific performance of contract (O.S.No.126/2007) alleging that the respondent/defendant executed an agreement of sale for Rs.50,000 and received earnest money of Rs.35,000. The defendant remained absent and was placed ex-parte. The Trial Court decreed the suit ex-parte, granting specific performance and directing the defendant to execute a sale deed upon receiving the balance of Rs.15,000. The defendant appealed (R.A.No.22/2014) before the Senior Civil Judge, Bailhongal, which allowed the appeal and set aside the ex-parte decree. The plaintiff then filed this Miscellaneous Second Appeal under Order XLIII Rule 1(u) CPC. The High Court examined the service of summons and found that the Trial Court had not complied with Order V Rule 17 CPC, which requires affixation of summons on the outer door if the defendant refuses to accept or cannot be found. The First Appellate Court correctly held that the service was not proper, and the ex-parte decree was rightly set aside. The High Court dismissed the appeal, confirming the First Appellate Court's order.
Headnote
A) Civil Procedure - Service of Summons - Ex-parte Decree - Order V Rule 17, Order IX Rule 13, Order XLIII Rule 1(u) Code of Civil Procedure, 1908 - The First Appellate Court set aside an ex-parte decree in a specific performance suit on the ground that the summons were not properly served on the defendant. The High Court upheld this, holding that the Trial Court failed to ensure compliance with Order V Rule 17 CPC, which requires the serving officer to affix a copy of the summons on the outer door if the defendant refuses to sign or cannot be found. The ex-parte decree was therefore liable to be set aside. (Paras 2-5)
Issue of Consideration
Whether the First Appellate Court was justified in setting aside the ex-parte decree on the ground that the summons were not properly served on the defendant, and whether the Trial Court erred in proceeding ex-parte without ensuring due service.
Final Decision
The High Court dismissed the Miscellaneous Second Appeal, confirming the judgment of the First Appellate Court which set aside the ex-parte decree. The High Court held that the Trial Court failed to comply with Order V Rule 17 CPC regarding service of summons, and therefore the ex-parte decree was rightly set aside.
Law Points
- Specific performance
- ex-parte decree
- service of summons
- Order V Rule 17 CPC
- Order IX Rule 13 CPC
- Order XLIII Rule 1(u) CPC
- duty of court to ensure proper service
- setting aside ex-parte decree
Case Details
2022 LawText (KAR) (01) 22
Justice Sachin Shankar Magadum
Sri. Harish Maigur and Smt. R.M. Hiremath
Sri. Mahantesh S/o Channabasappa Naganur
Sri. Manjunath S/o Madiwalappa Hosur
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Nature of Litigation
Civil suit for specific performance of contract
Remedy Sought
Appellant/plaintiff sought to set aside the judgment of the First Appellate Court which had set aside the ex-parte decree and restore the Trial Court's decree for specific performance.
Filing Reason
The appellant/plaintiff filed the suit alleging that the respondent/defendant executed an agreement of sale for Rs.50,000 and received earnest money of Rs.35,000, but failed to execute the sale deed.
Previous Decisions
Trial Court decreed the suit ex-parte granting specific performance; First Appellate Court allowed the appeal and set aside the ex-parte decree.
Issues
Whether the First Appellate Court was justified in setting aside the ex-parte decree on the ground of improper service of summons.
Whether the Trial Court complied with Order V Rule 17 CPC before proceeding ex-parte.
Submissions/Arguments
Appellant argued that the First Appellate Court erred in setting aside the ex-parte decree.
Respondent contended that the summons were not properly served and the ex-parte decree was rightly set aside.
Ratio Decidendi
The court held that under Order V Rule 17 CPC, if the defendant refuses to sign the acknowledgment or cannot be found, the serving officer must affix a copy of the summons on the outer door of the house. The Trial Court did not follow this procedure, and thus the service was not proper. Consequently, the ex-parte decree was liable to be set aside.
Judgment Excerpts
The Trial Court has not complied with Order V Rule 17 of CPC. The service of summons is not proper.
The First Appellate Court was justified in setting aside the ex-parte decree.
Procedural History
The appellant/plaintiff filed O.S.No.126/2007 for specific performance. The defendant remained absent and was placed ex-parte. The Trial Court decreed the suit ex-parte on 30.06.2014. The defendant appealed in R.A.No.22/2014 before the Senior Civil Judge, Bailhongal, which allowed the appeal on 01.04.2017, setting aside the ex-parte decree. The plaintiff then filed this Miscellaneous Second Appeal under Order XLIII Rule 1(u) CPC before the High Court of Karnataka, Dharwad Bench, which was dismissed on 14.01.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Order V Rule 17, Order IX Rule 13, Order XLIII Rule 1(u)
