LAXMINARAYAN vs RAMCHANDRA
- Court
- Rajasthan High Court
[2026:RJ-JD:53544]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Miscellaneous Appeal No. 2717/2016
CNR: RJHC010152692016 | URN: CMA / 8882U / 2016
Laxminarayan S/o Sh. Onkarlal, R/o Bedala C/o Chetak
Travelling Agency, Pahari Bus Stand, Chetak Circle, Udaipur Raj.
----Appellant
Versus
Ramchandra S/o Shri Poonam Chand, R/o Sector No.3, House
No. 111, Hiran Magari, Udaipur Raj.
----Respondent
For Appellant(s) : Mr. Prashant Tatia
For Respondent(s) : None present
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
Date of Conclusion of Arguments : 21/08/2026
Date on which Order is Reserved : 21/08/2026
Full Order or Operative Part : Full Order
Date of Pronouncement : 31/10/2026
BY THE COURT:-
1. The instant S.B. Civil Miscellaneous Appeal has been
preferred by the appellant-defendant under Section 104 read with
Order XLIII Rule 1 of the Code of Civil Procedure, 1908
(hereinafter referred to as ‘the CPC’), assailing the order dated
14.09.2016 passed by the learned Additional District Judge No. 4,
Udaipur, in Civil Miscellaneous Case No. 37/2016, whereby the
application preferred by the appellant under Order IX Rule 13 read
with Section 151 of the CPC, seeking setting aside of the ex parte
judgment and decree dated 29.07.2004, came to be dismissed.
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2. The appeal arises out of a suit for recovery of money
amounting to Rs.3,77,540/-, which was decreed ex parte against
the appellant-defendant vide judgment and decree dated
29.07.2004. The appellant has questioned the rejection of his
application under Order IX Rule 13 of the CPC, contending that the
summons in the original suit were not duly served upon him and
that he had sufficient and reasonable cause for his non-
appearance before the learned Trial Court. The valuation of the
appeal has been stated to be Rs.3,775/-, while the subject matter
of the original suit was recovery of Rs.3,77,540/-.
3. Brief facts of the case are that the respondent-plaintiff
instituted a suit for recovery of Rs.2,15,000/- on 12.04.2004,
alleging that the amount had been advanced to the appellant-
defendant on 20.04.2001 against a written acknowledgment, with
agreed interest at the rate of Rs.2.10 per month per Rs.100/-.
Despite extension of the repayment period and issuance of a legal
notice dated 15.03.2004, the appellant allegedly failed to repay
the amount.
3.1. Upon refusal by the appellant to accept the summons, the
same were affixed at his premises. Treating the service as
sufficient, the learned Trial Court proceeded ex parte on
03.06.2004. After recording the plaintiff's evidence and exhibiting
the acknowledgment dated 20.04.2001 (Exhibit-1), the suit was
decreed vide judgment dated 29.07.2004 for Rs.3,77,540/-,
comprising principal and interest, along with further interest at
6% per annum on the principal amount.
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3.2. The appellant asserted that he acquired knowledge of the ex
parte decree only upon receipt of notice in execution proceedings
initiated on 01.04.2015. He thereafter preferred an application
under Order IX Rule 13 read with Section 151 CPC, along with an
application under Section 5 of the Limitation Act, alleging
improper service of summons, collusion in the process server's
report and repayment of Rs.2,85,000/- towards the liability. He
also relied upon the respondent's prolonged inaction in initiating
execution proceedings to substantiate his lack of knowledge of the
decree.
3.3. The respondent contested the applications, maintaining that
the appellant had deliberately refused to accept the summons,
which were thereafter duly affixed in accordance with law. The
alleged repayment was denied for want of proof, and it was
submitted that the delay in initiating execution proceedings was
attributable to the respondent's expectation of voluntary
repayment.
3.4. Upon consideration of the rival submissions and material
available on record, the learned Trial Court, vide order dated
14.09.2016, dismissed the application under Order IX Rule 13
CPC. Aggrieved thereby, the appellant has preferred the present
appeal.
4. Learned counsel for the appellant-defendant has assailed the
impugned order, reiterating that the appellant was not duly served
with the summons in the original suit and that the proceedings
culminated in an ex parte decree without affording him an
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effective opportunity to defend himself. It is contended that the
respondent-plaintiff and the appellant were closely related and
belonged to the same social community, and that the appellant
had no knowledge of the decree until the execution proceedings
were initiated after a substantial lapse of time. It is further
submitted that the learned Trial Court failed to appreciate the
circumstances surrounding the alleged service and the appellant's
explanation for his non-appearance.
5. Per contra, the respondent-plaintiff has supported the
impugned order, submitting that the service of summons was duly
effected and that the process server's report specifically records
the appellant's refusal to accept the summons. It is contended
that the summons were affixed at a conspicuous place after the
appellant declined to receive them and that the report was duly
considered by the learned Trial Court before it proceeded ex parte.
The respondent further submits that the appellant has failed to
establish any sufficient cause for setting aside the decree and that
the application was rightly rejected by the learned Trial Court.
6. In view of the rival submissions, the principal question
requiring consideration is whether the learned Trial Court
committed any error in dismissing the appellant's application
under Order IX Rule 13 of the CPC, particularly in view of the
material relating to service of summons, the order proceeding ex
parte and the explanation subsequently furnished by the appellant
for his non-appearance.
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7. I have considered the submissions advanced by learned
counsel for the parties and have examined the material available
on record, including the order impugned in the present appeal.
The scope of consideration at this stage is confined to examining
the legality and correctness of the order dated 14.09.2016,
whereby the learned Trial Court declined to set aside the ex parte
judgment and decree. The merits of the underlying money claim
are not required to be independently adjudicated in the present
appeal, except to the extent necessary for considering the
grounds raised under Order IX Rule 13 of the CPC.
8. Before proceeding further, it is appropriate to notice that
Order IX Rule 13 of the CPC provides a remedy to a defendant
against whom an ex parte decree has been passed, where the
defendant establishes that the summons were not duly served or
that he was prevented by sufficient cause from appearing when
the suit was called on for hearing. At the same time, the proviso
to the said rule stipulates that a decree shall not be set aside
merely on the ground of an irregularity in the service of summons
if the Court is satisfied that the defendant had notice of the date
of hearing and sufficient time to appear and answer the plaintiff's
claim.
9. In the present case, the record concerning service of
summons assumes considerable significance. The process server,
upon visiting the premises of the appellant-defendant for effecting
service, reported that the appellant was present but refused to
accept the summons. The appellant was identified by the
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respondent-plaintiff, and two witnesses were also present in
accordance with the directions of the Court to verify the
circumstances relating to the refusal. The process server recorded
the relevant facts in his report and, following the refusal, affixed
the summons at a conspicuous place at the premises of the
appellant-defendant.
9.1. The report of the process server is not merely a general
endorsement of non-service. Rather, as borne out from the
material referred to in the proceedings, it records the
circumstances in which service was attempted, the appellant's
alleged refusal to receive the summons, the identification of the
appellant and the presence of witnesses. Upon receipt of the said
report, the learned Trial Court considered the service to be
sufficient and passed the order dated 03.06.2004, proceeding ex
parte against the appellant.
9.2. In these circumstances, the appellant's contention that the
summons were not duly served cannot be accepted merely on the
basis of a subsequent denial. The contemporaneous report of the
process server, the recorded circumstances of the alleged refusal
and the consequential order passed by the learned Trial Court
constitute material circumstances which lend support to the
conclusion that the appellant had an opportunity to receive the
summons but did not do so. No material has been demonstrated
before this Court which would warrant discarding the process
server's report or holding that the learned Trial Court acted
without any basis in accepting the service as sufficient.
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9.3. It is pertinent to observe that the service of summons by
affixation cannot be treated as valid in every case merely because
a process server records such an endorsement. Its legality
depends upon compliance with the applicable procedural
requirements and the circumstances recorded in the service
report. In the present matter, however, the material relied upon by
the learned Trial Court indicates that the process server first
attempted to effect service, recorded the appellant's alleged
refusal to accept the summons, and thereafter affixed the
summons at a conspicuous place. The presence of witnesses to
verify the circumstances of the alleged refusal further lends
support to the report. In the absence of any convincing material
discrediting the said report, the conclusion reached by the learned
Trial Court does not call for interference.
9.4. Another circumstance which deserves consideration is that
the suit was not decreed immediately upon the order proceeding
ex parte. The order dated 03.06.2004 merely permitted the suit to
proceed in the absence of the appellant-defendant. Thereafter, the
matter proceeded for the plaintiff's evidence, during which the
respondent-plaintiff examined himself as PW-1, Dinesh as PW-2
and Bhuralal as PW-3 and produced the alleged written note dated
20.04.2001, marked as Exhibit-1. It was only after the evidence
was adduced that the learned Trial Court passed the ex parte
judgment and decree dated 29.07.2004.
9.5. Thus, the record reflects that the ex parte decree was not
passed on the very date on which the order proceeding ex parte
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was made. The proceedings continued thereafter, affording the
plaintiff an opportunity to lead evidence in support of his claim.
The appellant's allegation that the decree was passed without any
intervening judicial proceedings does not find support in the
sequence of events set out in the record. At the same time, the
fact that the plaintiff's evidence was recorded does not, by itself,
determine the merits of the underlying claim; it is relevant here
only to appreciate the procedural history of the suit.
9.6. The appellant has further relied upon the fact that the parties
are cousin brothers and belong to the same social community. It is
contended that, in view of their relationship and acquaintance, the
respondent-plaintiff would ordinarily have informed the appellant
about the institution of the suit or the passing of the decree.
However, the relationship between the parties, by itself, cannot
displace the contemporaneous record relating to service of
summons. Nor can the alleged familiarity between the parties be
treated as conclusive proof that the appellant had no knowledge of
the proceedings. The question must be determined on the basis of
the material relating to service and the explanation furnished for
non-appearance, rather than on the relationship alone.
9.7. The appellant has also placed reliance upon the alleged delay
on the part of the respondent-plaintiff in initiating execution
proceedings. It is pointed out that the decree was passed on
29.07.2004, whereas the execution application was filed on
01.04.2015, after a lapse of approximately eleven years.
According to the appellant, this prolonged interval indicates that
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the respondent-plaintiff had not pursued the decree and that the
appellant remained unaware of its existence.
9.8. The aforesaid contention, though relevant as part of the
overall factual background, does not by itself establish that the
summons in the original suit were not duly served. The mere
passage of time between the passing of a decree and the
institution of execution proceedings cannot, without more,
invalidate the decree or establish that the judgment-debtor had no
knowledge of the original proceedings. The respondent-plaintiff
has explained that he continued to hope for voluntary payment
and subsequently resorted to execution proceedings when
recovery through that process became necessary. Whether the
execution proceedings were initiated within the period permitted
by law is a distinct question and does not, in itself, determine the
validity of the service of summons in the original suit.
9.9. It is also material that, during the execution proceedings,
notices were issued to the appellant-defendant on several
occasions. As reflected in the submissions and material referred to
before this Court, the reports on those occasions indicated that
certain persons were present at the shop or premises, but service
upon the appellant could not be effected. These subsequent
reports form part of the procedural history of the execution
proceedings. However, they must be distinguished from the
service report relating to the original suit, which specifically
records the alleged refusal to accept summons. The subsequent
difficulty in effecting service during execution cannot, by itself,
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nullify the earlier service or conclusively establish that the
appellant had no notice of the original suit.
9.10.The appellant has further alleged that he had made
payments aggregating to Rs.2,85,000/- towards the liability in
question up to the year 2004. The respondent-plaintiff, however,
disputed this assertion and contended that no reliable proof of the
alleged payments had been produced. In the present appeal, the
question is not whether the entire decretal amount was correctly
calculated or whether any payments were made towards the
alleged liability. The question is whether the requirements of Order
IX Rule 13 of the CPC have been satisfied so as to justify setting
aside the ex parte decree. In the absence of material
demonstrating that the learned Trial Court committed an error in
rejecting the application on the grounds urged, the disputed
assertion regarding payment cannot, by itself, furnish a basis for
setting aside the impugned order.
9.11.The appellant's application under Order IX Rule 13 of the
CPC was filed after the decree dated 29.07.2004, following the
initiation of execution proceedings and the appellant's appearance
before the executing Court in May 2016. The appellant also sought
condonation of delay by filing an application under Section 5 of the
Limitation Act, 1963. The prolonged interval between the passing
of the decree and the filing of the application is, therefore, a
relevant circumstance which the Court must consider along with
the explanation furnished by the appellant and the material
concerning service of summons.
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9.12.It is well settled that an application under Order IX Rule 13
of the CPC cannot be allowed merely because a defendant
expresses a subsequent desire to contest the suit. The applicant
must establish one of the statutory grounds specified in the rule.
Where due service is established and the defendant fails to furnish
a satisfactory explanation for non-appearance, the Court is
justified in declining to set aside the ex parte decree. Conversely,
where the statutory requirements are satisfied, the remedy must
be considered in accordance with law. The determination must,
therefore, rest upon the facts and evidence of the particular case.
9.13.In the case in hand, the process server's report relating to
the original summons, the recorded circumstances of the alleged
refusal, the presence of witnesses and the order dated 03.06.2004
proceeding ex parte provide a substantial basis for the conclusion
reached by the learned Trial Court. The subsequent course of the
suit, culminating in the judgment and decree dated 29.07.2004,
further demonstrates that the suit proceeded to adjudication after
the plaintiff's evidence was recorded. The appellant has not been
able to demonstrate any material infirmity in the consideration of
these circumstances by the learned Trial Court.
9.14.This Court is mindful that the power under Order IX Rule 13
of the CPC is intended to ensure that a party is not deprived of an
opportunity to contest proceedings in circumstances recognised by
law. However, such a remedy cannot be invoked solely on the
basis of a belated denial of service when the contemporaneous
record supports the conclusion that service was attempted and
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refused. In the facts of the present case, the appellant has not
established that the service of summons was legally insufficient or
that he was prevented by sufficient cause from appearing before
the learned Trial Court when the suit was called for hearing.
10. Having regard to the entirety of the circumstances, this
Court finds that the learned Trial Court considered the relevant
material and arrived at a conclusion which cannot be characterised
as perverse, arbitrary or contrary to the provisions of the CPC. The
impugned order does not suffer from any error of law or
jurisdictional infirmity warranting interference by this Court in the
present appeal. The appellant has failed to make out a case for
setting aside the order dated 14.09.2016.
11. Consequently, the present S.B. Civil Miscellaneous Appeal,
being devoid of merit, is dismissed. The order dated 14.09.2016
passed by the learned Additional District Judge No. 4, Udaipur, in
Civil Miscellaneous Case No. 37/2016 dismissing the application
preferred by the appellant under Order IX Rule 13 read with
Section 151 of the CPC, is hereby affirmed. All pending
applications, if any, also stand disposed of. There shall be no order
as to costs.
(FARJAND ALI),J
Crt_7 (1763)
D/70
Mamta
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