KAILASH CHAND Vs. HEMLATA

JUDGEMENT

(1.) -The present misc. appeal arises out from an order dated 5.11.86 passed by learned District Judge, Churu, rejecting the application of the defendant-appellant dated 21.3.83 for setting aside ex parte decree dated 17.10.81.

(2.) The aforesaid application for setting aside ex-parte decree was moved by defendant-appellant on the ground inter alia that there was no service of summons on him before passing the ex-parte decree and he has no knowledge about the pendency of the suit before he was served with the notice of execution of ex-parte decree. It is also averred in the application for setting aside ex-parte decree that suit was instituted on 31.1.81 and summons were ordered to be issued. Next date was fixed 24.2.81 on which date it was recorded by the court that the defendant is not present let service of summons and registered AD be awaited. On 11.3.81 summons by ordinary process were not received however it transpired that the summons alleged to have been sent on the incorrect address of the defendant-appellant by registered post was returned back with the endorsement on the envelop as 'refused'. The refusal accepted to be sufficient service by the court upon the defendant-appellant. It is also alleged that the father of the plaintiff-respondent namely Shri Nath Malji was an employee of Electricity Board who has manipulated the report of refusal on the envelop from the postman without letting defendant-appellant to know about the pendency of the suit and fraudulently obtained ex-parte decree.

(3.) The plaintiff-respondent-decree-holder opposed the application for setting aside ex parte decree alleging that since the defendant-appellant has refused to accept the summons through registered post hence the ex- parte decree was rightly passed by learned trial Court. It is also alleged that since ex-parte decree was passed on 17.10.1981 and the application for setting aside was moved on 21.3.83 therefore, it deserves to be rejected as barred by lapse of time.