Case Note & Summary
The dispute arose from a suit filed by Respondent No.2 for recovery of money against Respondent No.1, who failed to refund a part sale consideration. The suit was filed on 25.05.1993, and an ex-parte decree was passed on 16.09.1997 due to Respondent No.1's absence. Respondent No.1 later filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the decree, claiming ignorance of the proceedings. The application was dismissed by the Additional District Judge on 05.07.2005, leading to an appeal (FAFO No. 2473 of 2005) in the High Court, which was allowed on 21.04.2006, restoring the suit for a decision on merits. Respondent No.2 subsequently filed a recall application, which was dismissed on 18.10.2019. The Supreme Court, upon hearing the parties, noted that Respondent No.1 had acknowledged receipt of summons and allowed the auction of the property, thus questioning his vigilance. The court set aside the High Court's orders and dismissed the application under Order IX Rule 13, affirming the validity of the auction sale and the decree. No costs were awarded.
Headnote
A) Civil Procedure - Setting Aside Ex-Parte Decree - Vigilance of Respondent - Code of Civil Procedure, 1908, Order IX Rule 13 - Respondent No.1 was aware of the proceedings yet failed to appear, leading to an ex-parte decree. The court held that the respondent's lack of vigilance disentitled him from relief, and the auction sale was valid (Paras 20-22).
Issue of Consideration
Whether the application under Order IX Rule 13 of the Code of Civil Procedure should be allowed to set aside the ex-parte decree.
Final Decision
The Supreme Court allowed the appeals, set aside the orders dated 21.04.2006 and 18.10.2019 passed by the High Court, and dismissed the application under Order IX Rule 13 of the Code of Civil Procedure. No costs were awarded.
Law Points
- Order IX Rule 13 Code of Civil Procedure
- 1908
- execution of decree
- service of summons
- presumption of service
- auction sale validity
