RAM NARAYAN Vs. STATE BANK OF INDORE

JUDGEMENT

(1.) A money suit No. 11B/ 86 was filed in the Court of First Additional Judge to District Judge Vidisha on behalf of State Bank of Indore against the petitioner and another, which was fixed for appearance of the defendant on 28.8.1986. None of the defendants though served appeared on the date fixed. Consequently-resulting in ex-parte decree against the petitioner and other respondent No. 2 M/s. Mahalaxmi Agency. At the time of execution after about four years of passing the ex-parte decree, petitioner moved an application for setting aside the ex-parte decree under Order 9 Rule 13 CPC, which was registered as MJC No. 7/90 and was dismissed vide order dt. 22nd Oct. 1997, against which Civil Revision No. 624/98 was filed before the High Court. However, it was too dismissed vide order dt. 6.8.98 of this court. The present review petition under Order 47 Rule 1 of CPC has been presented against the aforesaid order of this Court on the ground that the mandatory provision under Order 37 Rule 2(2) CPC was overlooked while rejecting the revision .petition.

(2.) It is not the case of the petitioner that the summons was not served on him. What is disputed is that the proceedings were summary in nature and required to be disposed of under the provision of Order 37 of the Code of Civil Procedure, which provides the service of summons in Form 4 of Appendix B or any such other form as may be prescribed from time to time in this behalf. It is not disputed that the summons was not in the prescribed form as provided under Order 37 Rule 2(2) of CPC. However, it was in the form of a regular civil suit under Order 5 Rules 1 and 5 of CPC.

(3.) The learned Single Judge while disposing of the civil revision had observed that the notice available on record is under the signatures of the petitioner and that the copy thereof was received by him. The report of the Process Server shows that it was served on the petitioner on 5.6.1986 for the date fixed as 28.8.1986, but the petitioner had failed to appear. The other defendant was served on 4.5.1986 but he also did not appear before the Court. The learned trial court found that there was no reasonable cause for absence of petitioner in the court on 28.8.1986 and also that thereafter the application for setting aside the decree was filed after about four years and was highly belated. It was further observed that even the notice to the petitioner was not issued in the prescribed proforma, it was still obligatory on the petitioner to attend the court on the fixed date after he had received the notice. The petitioner had sufficient time, yet he did not care to attend the court even to a object that the notice was not on prescribed proforma. Such lapse was only an irregularity and did not vitiate the further proceedings.