Duly served summons and burden of proof in ex parte decree challenges under Order 9 Rule 13

An application to set aside an ex parte decree failed because the defendant could not satisfy the Court that summons had not been duly served. Applying Order 9 Rule 13 of the Civil Procedure Code, the Court relied on attempted service, correspondence between the attorneys, and a registered letter returned with an endorsement of refusal to hold that service had been tendered. The defendant's version was found improbable, and the burden of proving non-service remained on him. On the materials before it, the Court saw no reason to differ from the finding below, so the summons was treated as duly served and the decree was not set aside.

---

---

Issues: Whether the ex parte decree should be set aside on the ground that the summons was not duly served.

Analysis: The application fell to be considered under Order 9, Rule 13 of the Civil Procedure Code, which required the defendant to satisfy the Court that the summons had not been duly served. The evidence of attempted service, the correspondence between the parties' attorneys, and the registered letter returned with the endorsement of refusal supported the conclusion that service had been tendered. The defendant's account was found improbable, and the Court held that the burden lay on him to establish, to the satisfaction of the Court, that he had no opportunity to accept service. On the materials before it, the Court saw no reason to differ from the finding below.

Conclusion: The summons was held to have been duly served, and the request to set aside the ex parte decree was rejected.

---