2011 (12) TMI 774

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....t summons was not served on the applicant. 2. The suit summons of the suit was sent to defendant nos. 1 to 5 by the office of the Sheriff of Mumbai by registered post prior to December 1997. It appears that the packets were returned unserved with the remark "unclaimed". An affidavit of service was filed by the bailiff in the office of the sheriff of Mumbai on 22 December 1997 stating that the packets sent by registered post were returned unclaimed. The court considered the returned notices to be a good service on the defendants and decided to proceed ex-parte in the absence of defendants as they had not appeared. The court then passed a decree against defendant nos. 1 to 5 in the sum of Rs. 6,00,000/- together with interest at 15% p.a. ....

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...., court shall make an order for setting aside the decree against him. As I have held that the summons was not properly served, decree is liable to be set aside under Order 9 Rule 13 of the Code. 5. Mr. Mehta, learned counsel for the original plaintiffs submitted that the decree in the present case was passed under Order 8 Rule 10 of the Code and therefore, it cannot be said aside under Order 9 Rule 13 of the Code. In support, he relied upon a decision of this court in Dhanvantrai R. Joshi Vs. Satish J. Dave and others, 1998 (3) Mh.L.J. 924 : [1998(4) ALL MR 509]. In that case, a Division Bench of this court has held that Order 9 Rule 13 of the Code does not apply to a decree which has been passed under Rule 5 or Rule 10 of Order 8 of the....

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.... 1 or Rule 9 of Order 8 of the Code. Order 8 Rule 10 of the Code would apply only in cases where the defendant has appeared in the suit but has not filed the written statement. It would not apply to a case where the defendant does not appear at all and the court decides to proceed ex-parte against him. The word "ex-parte" contemplates that the court proceeds in the absence of a person. Where the defendant does not appear at all, the court proceeds ex-parte against him. Order 9 Rule 6 of the Code says that where the plaintiff appears and the defendant does not appear when the suit is for hearing then if it is proved that the summons was duly served, the court may make an order that the suit be heard ex-parte. Thus, when the defendant does no....