GANDHARB SINGH Vs. MANJUL NARULA

JUDGEMENT

(1.) This revision petition is directed against the order of the learned Subordinate Judge dated 3.4.1992 by which the application of the respondents for setting aside the ex parte decree dated 5.5.1990 was allowed.

(2.) The petitioner filed a suit for recovery of Rs.19,000.00 against Shri N.K.Narula. This suit was contested by the defendant. During the pendency of the suit, defendant died. In the suit, he was being represented by Mr. J.L.Jain, Advocate. On 27.10.1988, Mr. Jain informed the court that about 10 days ago the son of the defendant had informed him that the defendant had expired. On that day the court directed the petitioner to take appropriate steps for substituting the L.R.S of the defendant. The petitioner, on 3.3.1989, moved an application for bringing on record the L.R.S of the defendant i.e. the wife and son of the deceased. Notice of this application was issued to the proposed L.R.S for 9.5.1989 which were returned with the following report of the postal authorities - "Repeated attempts were made but the addressee was not found available". On 9.5.1989 the court observed that the L.R.S were not served and issued fresh notice for 4.9.1989. On 11.5.1989 me plaintiff moved an application under Order 5 Rule 20 of the Code of Civil Procedure seeking direction from the court for serving the L.R.S by way of substituted service. On 12.5.1989 the court allowed the application and directed that the L.R.S be served by publication in the "STATESMAN'. A citation was issued in the 'STATESMAN' for appearance on 4.9.1989. On 4.9.1989 none appeared on behalf of the L.R.S and the court observed that the defendants had failed to appear despite service by publication and as such they were proceeded ex parte. The matter was fixed for ex parte evidence on 20.11.1989. Thereafter the court passed an ex parte decree on 5,5.1990.

(3.) The petitioner made an attempt to execute the decree. Meanwhile an application was filed by the respondents under Order 9 Rule 13 Civil Procedure Code for setting aside the ex parte decree. It was alleged in the application that the decree was obtained by the petitioner by playing fraud on the court. Summons were never served upon the applicants nor were the applicants aware about the pendency of the case or any application to bring them on record. They came to know only on 7.5.1991 when a court bailiff came to the premises of the applicants to execute the decree. It was further stated that the deceased died at Panchkula in a very precarious condition on 7.8.1988. He was penniless and virtually a pauper. After his death the applicants i.e. his wife and son did not live at the house and were residing with the mother of the wife of the deceased at Panchkula. They came to know about the decree on 7.5.1991 when it was sought to be executed against them. Thereafter they contacted the counsel and moved the application.