2001 (2) TMI 1057 - SC - Indian Laws

Appellant granted appeal, emphasizing notice service duty & right to contest suit. Importance of fair defense stressed.

Naresh Chandra Agarwal Versus Bank of Baroda and Ors.

The Supreme Court allowed the appeal, setting aside the judgments of the lower courts. The appellant's application to set aside the ex-parte decree was ... - Issues involved:Application to set aside ex-parte judgment and decree under Order 9 Rule 13 read with Section 151 of CPC, service of notice, impleadment of legal representatives, non-service of notice on the appellant, failure to decide crucial issues in the original suit, prejudice to appellant's interest in the estate, duty of plaintiff and court to ensure proper service of notice, interpretation of Rule 13 of Order 9.Analysis:The appellant filed an application under Order 9 Rule 13 read with Section 151 of CPC to set aside an ex-parte judgment and decree made in a suit by a bank against a partnership firm. The appellant, one of the legal heirs of a deceased defendant, was sought to be impleaded as a party without being served with the notice of application for substitution. The trial court mechanically held the service of notice as sufficient, leading to the ex-parte decree. The appellant contended that he was not served due to being away for work and that the notice was sent to an incorrect address. The respondent bank argued that the estate was sufficiently represented, and no appeal was made against the decree by other legal representatives. The trial court rejected the application, citing the lack of collusion allegations and irregularity in service of summons.The High Court upheld the rejection, emphasizing sufficient representation of the estate and lack of prejudice to the appellant. However, the Supreme Court found fault in the failure to serve notice on the appellant, distinguishing between irregularity and non-service of notice. Crucially, issues regarding the discharge of the appellant's father as a guarantor were not decided, impacting the appellant's interest in the estate. The Court ruled that the appellant should have been served with the notice, as his share in the estate would be affected by the decree execution. The application was allowed to set aside the decree for a fair hearing of the suit, without expressing opinions on other contentions raised.In conclusion, the Supreme Court allowed the appeal, setting aside the judgments of the lower courts. The appellant's application to set aside the ex-parte decree was granted, emphasizing the duty to ensure proper service of notice and the appellant's right to contest the suit. The judgment highlighted the importance of serving notice on parties to legal proceedings and ensuring a fair opportunity for defense, especially in cases affecting inherited estates.