MAHESH KUMAR Vs. S D KHANDEPAL

JUDGEMENT

(1.) This is a petition for revision on behalf of the pi untiffs decree-holders against the order of the trial court dated December 20. 1972, setting aside the ex parte decree passed against the respondent-objector, S. D. Khandepal in favour of deceased Pvare Lal

(2.) The deceased Pyare Lal on 24th October, 1962, filed a suit against the respondents. D. Khandepal and one Satendar Kumar for dissolution of patnership and rendition of accounts The respondent Khandepal filed his written statement on l2th December. 1962. Thereafter, Khandepal renpondent was called for army duty and be could not appear in court nor could he send instructions to his counsel with the result that the proceedings were hard in his absence. In spite of letter of request dated 22nd April. 1964 (Exhibit OW 2/1) issued by the Commanding Officer whereby the court was requested to adjourn the proceeding, and inspite of written application of his counsel dated 21st November, 1964, praying for adjournment and also staling that he bad no instructions, the trial court ultimately on 7th December, 1964, passed a preliminary decree for accounts and appointed a local commissioner. The local Commissioner sent various notices to Khandepal respondent but they were received unserved with the report " addressee on army duty and out of station . The trial court thhre upon by order dated 21st February, 1965, directed that service on respondent Khanepal be effected through his counsel but without service of notice on the counsel, the local commissioner proceeded ex parte against the respondent Khandepal and ultimately the trial court passed an exparte fiial decree dated 27th February, 1965 for Rs. 7205.75.

(3.) In the meantime the decree-holder died on or about 25th December, 1965 and one Mahesh Kumar filed an execution application on 13th May, 1968, on the said execution application the executing court issued notice to the Officer Commanting, 101 Infantry Battalion (FA) Poona, whereupon the Officer Commanding sent a certificate under section 7 of the Indian Soldiers (Litigation) Act, 1925 (hereinafter rtferred to as "the Act") in respect of the respondent, Khandepal with a request that proceedings against S. D. Khandepal may be postponed and in acknowledgement of issue of show cause notice dated 13th May, 1968, the Officer Commanding stated that S. D Khandepal was serving under special conditions (Exhibit 0 '-2/2). Despite all this, the proceedings continued ex-parte against the respondent Khandepal and the Officer Commanding then by a letter dated 14th October, 1988, reported the matter to the Commissioner, Delhi, with a copy to the Court and also sent another communication to the Court dated 18th October, 1968, (Exhibit DW2/5) The Officer Commanding again wrote a letter dated 26th November, 1968, requesting the executing court for postponement of the hearing. But in spitp of all these letters the executing court continued the execution proceeding and ultimately the respondent Khandepal was served on 3rd April, 1970. On 27th April, 1970, the respondent Khandepal filed objections petition wherein it was stated that he could not contest the suit on merits because he was in the field area being an army officer and the benefit of the Soldiers Act was not given to him. This application was amended with leave of the court and amended objections were filed on 27th August, 190. It was pleaded in the amended objections that during the pendency of the suit and at the time of the passing of the preliminary decree and the final decree the judgment-debtor objector was serving in the army under the special conditions as defined in section 3 of the Indian Soldiers (Litigation) Act and the exparte decree may therefore be set aside. A reply was filed to the above by the petitioners decree. holders on 23rd September, 1970.