Proper service of summons and Order 9 Rule 13 relief set aside an ex parte decree where the defendant never appeared.
Proper service of summons is essential to sustain an ex parte decree; where the summons was sent to an incorrect flat address within the same housing society, a return of "unclaimed" did not prove due service. A decree against a defendant who never appeared is treated as one passed in ex parte proceedings under Order 9 Rule 6 CPC, not under Order 8 Rule 10 CPC merely because no written statement was filed. On that basis, an ex parte decree founded on non-service could be set aside under Order 9 Rule 13 CPC, and the suit was restored for decision on merits.
Issues: (i) whether the suit summons was duly served on the defendant No. 5 so as to sustain the ex parte decree, and (ii) whether the decree was one passed under Order 8 Rule 10 of the Code of Civil Procedure, 1908, or under Order 9 Rule 6 of the Code of Civil Procedure, 1908, and was therefore liable to be set aside under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
Issue (i): whether the suit summons was duly served on the defendant No. 5 so as to sustain the ex parte decree.
Analysis: The address shown in the plaint and in the summons was found to be erroneous, as the defendant resided in a different flat within the same housing society. The return of the summons as unclaimed could not establish due service where the intimation itself was delivered at the wrong address. On those facts, the service could not be treated as proper service on the defendant.
Conclusion: The summons was not duly served on defendant No. 5.
Issue (ii): whether the decree was one passed under Order 8 Rule 10 of the Code of Civil Procedure, 1908, or under Order 9 Rule 6 of the Code of Civil Procedure, 1908, and was therefore liable to be set aside under Order 9 Rule 13 of the Code of Civil Procedure, 1908.
Analysis: Order 8 Rule 10 applies where a defendant has appeared but fails to file a written statement. Where the defendant does not appear at all and the court proceeds ex parte after service, the decree is one made in proceedings under Order 9 Rule 6. Since the defendant had not appeared and the court had proceeded ex parte, the decree was not one passed under Order 8 Rule 10. As the summons was not duly served, the decree fell within Order 9 Rule 13 and could be set aside.
Conclusion: The decree was not passed under Order 8 Rule 10 and was liable to be set aside under Order 9 Rule 13.
Final Conclusion: The ex parte decree was set aside and the suit was restored for decision on merits, with directions for expeditious progress and filing of the written statement.
Ratio Decidendi: An ex parte decree can be set aside under Order 9 Rule 13 where summons was not duly served, and a decree in proceedings where the defendant never appeared is not treated as a decree under Order 8 Rule 10 merely because no written statement was filed.
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