NISCHINT ARORA Vs. UNITED INTERNATIONAL

JUDGEMENT

(1.) BY this application the defendant seeks setting aside of the ex-parte decree passed by the Court on 17.11.1997 in Suit No.1791/1995.

(2.) IN IA No.3514/2009 the applicant seeks condonation of delay in filing the application alleging that it came to know about the decree only on 23.4.2008 when the Execution Petition No.19/1998 was served upon it and the previously engaged counsel did not render proper advice to move the Court for setting aside the petition. According to the averments made in IA No.3515/2009, the applicant defendant contends that the judicial record, particularly containing the service record indicating that defendant No.2 constantly remained unserved because the plaintiff did not provide the proper address. Learned counsel places reliance on the service reports dated 12.2.1996, 26.2.1996, 18.4.1996 and 21.5.1996, all of which unanimously state that summons issued were returned back unserved. It is emphasized that the Court proceeded to set I.A. Nos. 3514/2009 and 3515/2009 in down the defendant/applicant ex parte on the basis of an affidavit of the plaintiffs representative, Shri Vijay Chawla who stated that on 13.3.1996 a Court notice was served at the defendants Kirti Nagar address and that the defendant was not found to be living there. It is submitted that the Court was misled into setting down the defendant ex parte on the basis of the following averments made in the said affidavit:

(3.) LEARNED counsel for applicant/defendant contends that the above would indicate that the plaintiff did not serve the defendant at the given address and that the only basis for affirming the service was the statement of the courier company about the corresponding agency, Fedex mentioning to them about having got in touch with the plaintiff on telephone and a letter having refused to accept the summons.