PUNJAB AND SIND BANK Vs. RAMJI DAS KHANNA

JUDGEMENT

(1.) This is an application under Order 37 Rule 4 Order 37 Rule 3(7), Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure (for short 'the Code') for setting aside the judgment and decree dated 2nd August, 1982.

(2.) Punjab & Sind Bank plaintiff/non-applicant on the basis of a prortote for Rs. 55,000.00 dated 7th February, alleged to have been executed by the defendants, filed on 1st February, 1982 a suit for recovery of Rs 1,33,760.41 under Order 37 of the Code. Summons in the prescribed form under Order 37 of the Code was issued for 23rd March, 1982. The defendants were not served. Fresh summons were ordered to be issued for 5th May, 1982. The Court in its order dated 18th May, 1982 did not treat the service for 5th May, 1982 as valid. Fresh summons were issued to the defendants for 12th July, 1982 with the direction that, "if the defendants cannot be served personally or they refuse to accept service, service be got effected by way of affixation". It was reported that the defendants were served for 12th July, 1982 by affixation. No application for leave to defend was filed. On 2nd August, 1982 the suit was decreed under Order 37 of the Code.

(3.) The defendants in this application allege that they were not served at all, that the summons were never tendered to them by the process-server, that the address of the defendant No. 2 given in the plaint was wrong as he has not been residing at that address, that he has been living in House No222- MIG Flats, Rajouri Garden Extension, New Delhi, that defendant No. 1 suffered heart attack about six months back and he was advised complete rest by the Doctor, that the defendants came to know of the ex-parte decree on 25th October, 1982 and after getting the Court file inspected, filed the present application on 2nd November, 1982. The allegations of the defendants are deniedon behalf of the plaintiff.