AWANTI LAL Vs. HUKAMI CHAND

JUDGEMENT

(1.) The present appeal has been filed by the appellant-defendant under Order XLIII Rule 1(d) CPC against the order dated 8.9.2006 passed by the Addl. District Judge, Beawar (Ajmer) (hereinafter referred to as 'the trial court') in civil misc. case no. 9/2001, whereby the trial court has dismissed the application filed by the appellant under Order IX Rule 13 CPC for setting aside the exparte decree dated 24.3.1998 passed in civil suit no.23/1997.

(2.) The short facts of the case are that the plaintiff-respondent had filed the suit against the appellant-defendant for recovery of Rs.85,000/- along with interest @21% per annum. In the said suit, the appellant was sought to be served by registered post. According to him, he was not served and therefore he could not appear in the suit proceedings, which resulted into passing of exparte decree against him. When the said decree was sought to be executed , the notice of attachment was issued against him, and at that time he came to know about the said exparte decree. He, therefore, immediately filed an application before the trial court for setting aside of the said decree. The trial court dismissed the said application vide its order dated 8.9.2006 on the ground that there was only an irregularity and not illegality in the service of summons.

(3.) It has been sought to be submitted by the learned counsel for the appellant that there was no order of the court to serve the appellant through registered post and that there was no personal service effected on the appellant. According to him, some acknowledgement receipt signed by some person was produced by the respondent to show that the appellant was served by registered post which could not be said to be proper service. It is further submitted that the trial court without appreciating the documents and evidence on record, has dismissed the application filed under Order IX Rule 13 CPC, which deserves to be set aside.