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Issues: Whether the ex parte decree should be set aside under Order IX Rule 13 of the Code of Civil Procedure, 1908 on the grounds that the summons was not duly served and that the defendant was prevented by sufficient cause from appearing.
Analysis: Order IX Rule 13 permits setting aside an ex parte decree where the defendant satisfies the Court that summons was not duly served or that sufficient cause prevented appearance. The service record showed repeated failures of service through court process and postal modes, with endorsements such as refused, insufficient address, addressee moved, and non-existence at the stated address. The Court also found that substituted service and transfer of the suit to the undefended list had been obtained without full disclosure of the service difficulties and the change in address, amounting to suppression of material facts. In these circumstances, the defendant was denied an effective opportunity to appear and defend.
Conclusion: The ex parte decree was liable to be set aside because summons was not duly served and the defendant was prevented from appearing by sufficient cause.
Final Conclusion: The application for recall of the ex parte decree was allowed, and the suit was restored for filing of the written statement and proceeding in accordance with law.
Ratio Decidendi: An ex parte decree must be set aside where the defendant proves non-service of summons or sufficient cause for non-appearance, especially when material facts affecting service have been suppressed.
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