RAJKUNWAR Vs. MANMOHAN CHIND

JUDGEMENT

(1.) This is an appeal by the defendants under Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908 (henceforth 'the CPC') challenging the order dated 6-2-2013 passed by 1st Additional District Judge, Raipur in M.J.C. No. 1/2006, by which the application filed by the appellants/defendants under Order IX, Rule 13 of the CPC for setting aside the ex parte decree dated 30-4-2005 passed in Civil Suit No. 11-A/2002 and their application for condonation of delay in filing the application for setting aside the ex parte decree have been rejected by the trial Court. The facts in brief, necessary for adjudication of this appeal, are as under:

(2.) Shri Manoj Paranjpe, learned counsel appearing for the appellants/defendants would submit that the trial Court has committed legal error in rejecting both the applications filed under Order IX, Rule 13 of the CPC and under Section 5 of the Limitation Act stating inter alia:

(3.) Per contra, Shri Sunil Otwani and Shri Adhiraj Surana, learned counsel appearing for the respondent/plaintiff would submit that the trial Court is absolutely justified in declaring the summons duly served as the defendant No. 1 in his personal capacity as well as on behalf of other defendants who are residing jointly with her, competently refused to accept summons sought to be served by the process server. They would further submit that need of affixing the copy of the summons has been dispensed with by the M.P. Amendment incorporated in Order VI, Rule 17 of the CPC. They would further submit that the appellants/defendants have failed to demonstrate sufficient cause for setting aside the ex parte decree as well as for condonation of delay of 54 days in filing the appeal. They would lastly submit that there is a material contradiction/omission in the applications under Order IX, Rule 13 of the CPC and under Section 5 of the Limitation Act.