ABDUL KHALID Vs. ZARINA BEGUM AND ORS

JUDGEMENT

(1.) Ex-Parte decree was passed by District Judge, Rajouri on 15.6.2002. An application for setting aside the same was filed by the present appellant before the trial court. The ground urged in the application was that he was not served in consonance with the provisions of Order 5 of the Code of Civil Procedure. Categorical stand taken by the appellant was that no notice was ever received by him. The learned trial court after hearing the parties has dismissed the application vide order dated 16.01.2004. Feeling aggrieved of the said order, the present appeal has been preferred.

(2.) In order to seek setting aside of the proceedings, recourse to Order 9 Rule 13 of the C.P.C. is to be taken. Explanation to Order 9 Rule 13 requires that if a judgment/decree sought to be set aside has been disposed of by the appellate court on any ground, except if the appeal has been withdrawn, no application shall lie for setting aside the ex-parte decree.

(3.) In view of this provision, application of the appellant for setting aside ex-parte decree cannot be entertained. The learned trial court while examining the contention of the appellant regarding non service has stated that registered A/D covers vide postal receipt No. 4249 dated 30.1.1997 were sent to the present appellant. Notice was not received back served or un-served, as such, presumption of his service was drawn after expiry of 30 days. The appellant has not shown anything to rebut this presumption.