JAYANTI PRASHAD GUPTA Vs. DEEP CHAND LIMITED

JUDGEMENT

(1.) By I.A. No. 574/94 under Order 9 Rule 13 CPC, the applicants (original defendants No.1 to 6) pray for setting aside the ex parte decree dated 26.5.1993 passed in favour of the opponent (original plaintiff). By I.A. No. 3640/95 under Section 5 of Limitation Act, these applicants also pray for condonation of delay caused in filing IA No. 574/94 if the court comes to the conclusion that I.A. 574/94 is barred by time.

(2.) . The opponent (original plaintiff) filed Suit No. 24/92 against these applicants and two other defendants for recovery of certain amount and permanent injunction; that the said suit came to be decreed ex parte on 26.5.1993 against these applicants and that as far as these applicants are concerned, the summons of the suit, attemted to be served by Registered AD Post, returned with the endorsement "Refused" whereas the summons by ordinary process, as per the endorsement on the summons, were accepted by the brothers of the defendants, except one of the defendants.

(3.) . One of the contentions by Mr.Ramesh Chandra, counsel for the applicants, is that defendants No. 1 to 6 are not duly served with the summons of the suit since service to the brother of defendants is no service in eye of law; that service of summons had to be personally to the defendants or to any adult member of the defendants' family and the brother of defendants is not a member of defendants' family. It is further submitted that if the defendants are served with summons then there is no reason for the defendants not to appear before the court and contest the suit when he had contested the proceedings under Section 20 of the Arbitration Act.