Rajasthan HC Leaves ₹3.77-Lakh Ex-Parte Decree In Place After Process Server Reported Defendant Refused Summons

The respondent-plaintiff sued to recover money allegedly advanced to the appellant-defendant and obtained an ex parte decree for Rs.3,77,540 on 29 July 2004.

The trial court had proceeded ex parte after the process server reported that the appellant refused summons, which were then affixed at his premises.

After execution proceedings were initiated, the appellant applied under Order IX Rule 13 CPC to set aside the decree, asserting that he had not been duly served, had no knowledge of the suit until execution, and had repaid Rs.2,85,000. He also sought condonation of delay under Section 5 of the Limitation Act.

The trial court dismissed the application on 14 September 2016, and the appellant appealed.

Order IX Rule 13 CPC permits an ex parte decree to be set aside where the defendant establishes that summons were not duly served or that sufficient cause prevented appearance when the suit was called for hearing.

Under its proviso, an irregularity in service alone is insufficient if the defendant had notice of the hearing date and sufficient time to appear and answer the claim.

The Court also considered Section 5 of the Limitation Act, 1963, under which the appellant sought condonation of delay.

The appeal was brought under Section 104 read with Order XLIII Rule 1 CPC.

The Court relied on the contemporaneous process-server report, which recorded the appellant’s alleged refusal, his identification, the presence of witnesses, and the subsequent affixation of summons. It found no convincing material to discredit that report or the trial court’s decision to proceed ex parte.

The Court treated the parties’ relationship, the delay before execution, and the appellant’s subsequent difficulty in receiving execution notices as insufficient, by themselves, to negate service in the original suit.

The alleged repayments concerned the underlying money claim and did not establish a ground under Order IX Rule 13.

Considering the service record and the appellant’s explanation for non-appearance, the Court found no demonstrated basis to interfere with the trial court’s decision.

It dismissed the appeal and affirmed the order dated 14 September 2016 rejecting the Order IX Rule 13 application; pending applications were disposed of, with no order as to costs.