INDAL KUMAR Vs. GAURAV KUMAR GROVER

JUDGEMENT

(1.) Challenge in the present petition is to the impugned order dated 09.09.2014, whereby application filed under Order 37 Rule 4 of Code of Civil Procedure, has been dismissed. Mr. Manish Kumar Singla, learned counsel appearing on behalf of petitioner -Judgment Debtor -defendant submits that Civil Suit bearing No. 116 under Order 37 Rule 2 was instituted on 29.03.2011. He has referred to the zimni orders passed on 16.04.2011, 29.04.2011 and 01.06.2011 to demonstrate that on receipt of refusal report, the trial Court ordered to effect service through munadi process and after effecting the service through munadi process, ex parte judgment and decree has been passed. Application for setting aside the ex parte judgment and decree as per provision of Order 37 Rule 4 read with Sec. 151 of CPC was moved on 15.11.2012.

(2.) He has further shown the copy of the report of the Process Server dated 26.04.2011, which is alleged to have been witnessed by one Banwari Lal, Chowkidar and report dated 23.05.2011 of effecting the munadi service. He further submits that parties were at variance that learned trial Court had framed issues and from the cross -examination of the Process Server, with regard to the effecting of service on summons and munadi, it has surfaced that Process Server did not know the witnesses, much less, even Tarsem Singh, admitted that he had never visited the house of the petitioner -defendant and submits that Court below has taken into consideration only one solitary reason in declining the application. Petitioner has not been able to prove on record whether the Indal Kumar and Indraj is one and the same person, therefore, valuable right of defence has been taken away and prays for setting aside the order. Mr. Vaibhav Sehgal, learned counsel appearing on behalf of respondent submits that there is no explanation given in moving the application in December 2012. It is only Executing Court who issued the conditional warrant of arrest and application in hand was moved. He submits that main thrust in the application was that he was never served with regard to the pendency of the suit and his name on summons had been written as Indraj whereas he is Indal Kumar.

(3.) I have heard learned counsel for parties and appraised the paper book.