BAIRATH TEHSIL KHADI GRAMODAYA SAMITI Vs. RATNIKANT SHARMA

JUDGEMENT

(1.) The present appeal has been filed under Order XLIII Rule 1(D) of CPC by the appellant-defendant challenging the order dated 20th August, 2008 passed by the District & Sessions Judge, Jaipur District, Jaipur (here-in-after referred to as "the trial court") in Civil Misc. Application No. 157/2006, whereby the trial court has dismissed the said application filed by the appellant-defendant under Order IX Rule 13 of CPC, by not condoning the delay in filing the said application.

(2.) The short facts giving rise to the present appeal are that respondent-plaintiff had filed the suit before the trial court for recovery of Rs. 3,04,122/- with interest from the appellant-defendant on 31.1.2005, which suit was registered as the Civil Suit No. 66/2005. In the said suit, the summons was sought to be served on the appellant-defendant for his appearance on 30th April, 2005. However, according to the respondent-plaintiff, the appellant-defendant did not appear before the trial court though duly served, and hence the trial court proceeded ex-parte against the appellant-defendant. The trial court thereafter passed the decree on 3.12.2005 directing the appellant-defendant to pay Rs. 3,04,122/- with interest @ 9% per annum from the date of filing the suit till decree. The appellant-defendant having come to know about the ex-parte decree on being served with the warrant in the execution proceedings, filed an application under Order IX Rule 13 for setting-aside the ex-parte decree and also sought condonation of delay by filing application under Section 5 of the Limitation Act. The trial court, vide impugned order dated 20th August, 2008 did not condone the delay and dismissed the application of the appellant-defendant filed under Order IX Rule 13 CPC. Being aggrieved by the said order, the present appeal has been filed.

(3.) Learned counsel Mr. M.K. Jain appearing for the appellant, taking the Court to the provisions of Order V of CPC submitted that the trial court had committed an error in treating the service of summons on the appellant-defendant as proper service. According to him, first summon was sought to be served on one Chhitar Mal, who was not the employee of the defendant and on the second time, the process server affixed the summons on the office of the defendant as one person named Mahadev had refused to accept the summons. He submitted that there was nothing on record to show that either Chhitar Mal or Mahadev were authorized persons to receive summons on behalf of the appellant-defendant. He also submitted that the period of limitation should have been counted from the date of knowledge of the ex-parte decree and not from the date of decree itself as contemplated under Article 123 of the Limitation Act. Lastly, he submitted that the delay was only of few days, which should be condoned in the interest of justice and the ex-parte decree passed against the appellant be set-aside.