MOTI CHAND JAIN Vs. MAHESH CHAND PAL

JUDGEMENT

(1.) The appellant/judgment debtor - defendant has preferred this appeal under Order 43, Rule (1), Clause (d) of the Code of Civil Procedure, questioning the legality, validity and correctness of the order dated 17.08.2006, passed by the 11th Additional District Judge (FTC), Durg in M.J.C. No. 5/2005, by which his application under Order 9 Rule 13 of the C.P.C. for setting aside of the ex parte judgment and decree dated 21.10.2002 in Civil Suit No. 25-A/2001, has been rejected.

(2.) The necessary facts, required for adjudication of the instant appeal are as under :

(3.) Shri Paramod Verma, learned Senior Counsel, heavily assisted by Shri Virendra Verma, learned counsel for the appellant firstly submits that the summons was not duly served to the defendant for the reasons that the procedure prescribed under Order 5 Rule 17 of the CPC has not been followed by the process server as the report of the process server nowhere records as to how the house of the defendant was identified by him. It also did not record that in whose presence the wife of the appellant defendant refused to accept the summons issued by the Court. He further submits that the affidavit allegedly filed by the process server before the Court is not in conformity with the requirement of law, particularly the Form No.11 of the appendix-B of the Code of CPC and finally submits that the Court while holding that the summons was duly served has not made any enquiry as provided under Order 5 Rule 19 of the CPC. While concluding his submission, learned Senior counsel finally submits that no declaration as envisaged under Order 5 Rule 17 has been made and no judicial order whether the summons is duly served or not has been recorded by the trial Court, which is mandatory in nature and not declaring that the summons is duly served after making an enquiry by judicial order the trial Court has committed grave legal error in holding that summons was duly served and thereby proceeding ex parte and passing ex parte decree is absolutely illegal and liable to be set aside.