LILABAI WD/O KUNJBIHARIDAS Vs. TRIYOGINARAYAN LAXMINARAYAN

JUDGEMENT

(1.) BEING aggrieved by the order dated 24-11-1995 passed in Misc. Appeal No. 12/94 by the learned Xllth Additional District Judge, Indore, confirming the order dated 4-3-1994 passed in MJC No. 62/87 by the learned Civil Judge, Class-I, Indore, dismissing the applicants application filed under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte judgment and decree delivered in Civil Suit No. 5-B/1986 (though the suit is Suit No. 5-B/86 but at many places it has been referred as 5-B of 1985) (Triyoginarayan v. Daulatdas) on 28-7-1986.

(2.) THE applicants moved an application under Order 9, Rule 13, Civil Procedure Code inter alia pleading that they were not served in accordance with law, therefore, the ex parte decree passed against their interest, deserved to be set aside. In the revision memo, so also in the application for setting aside the ex parte decree, reference to earlier litigation has been made, but to my mind consideration of the earlier matters lodged by the parties is not relevant.

(3.) THE applicants submitted before the Court that as they were not served properly in accordance with law of the service of summons of C. S. No. 5-B/85 (86), the ex parte decree deserved to be set aside. The application was vehemently opposed and it was contended that Daulatdas s/o Mahant Kunjbiharidas, one of the defendant in the original suit was served in accordance with law and as he was representing all concerned, the Bailiff supplied him the copies to effect service and as such each of the defendant was properly served, therefore, the plea raised by the defendants that they were not served in accordance with law could not be accepted and the application deserved dismissal.