RAM NARAYAN Vs. ADDL DISTRICT JUDGE

JUDGEMENT

(1.) By the impugned orders, the Courts below have rejected the application filed by the petitioners under Order IX, Rule 13, C.P.C. Original Suit No. 26 of 1992 was instituted by the respondents herein against the petitioners. Admittedly, the summon was served on the defendant/petitioners who filed the written statement. Subsequently, on 16.9.1996, the suit was dismissed due to absence of the parties. Thereafter an application to restore the suit was filed by the plaintiff suit was allowed after hearing the learned Counsel for the parties. The suit was ultimately decreed ex parte.

(2.) An application to set aside the ex parte decree was filed on the ground that after the restoration of the suit to its original number, no summon was served on the defendant/petitioners. The said plea has not believed by the two Courts below on the findings that the defendants after the restoration of the suit to its original number appeared on various dates and participated in the proceedings. Not only that the issues were settled in the presence of the learned Counsel for the parties.

(3.) Challenging the aforesaid approach of the Courts below, the learned Counsel for the petitioners submits that in view of the Order IX, Rule 6 of C.P.C., unless and until summons is served on the defendants, ex parte decree be set aside.