TaxTMI 
TaxTMI 
TaxTMI 
2001 (2) TMI 1057
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....ant had prayed for setting aside the ex-parte judgment and decree dated 9.5.1995 made in O.S. No. 107/84. The said application of the appellant came to be dismissed and an appeal filed against the said dismissal of the application also came to be dismissed by the High Court, hence, this appeal before us. 3. The case of the appellant is that the plaintiff-Bank had filed a suit against a partnership firm by name M/s. Ashok Khad Agency for the recovery of certain sums of money advanced to it by the plaintiff-Bank. It is stated in the original suit defendants 2 & 3 who are the brothers of the appellant were partners of the 1st defendant firm which was the debtor to the bank and along with them defendants 4 to 8 were the guarantors to the loan ....
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....been released by the bank as a guarantor and he had no legal obligation to discharge the loan or amounts due from the first defendant partnership firm. It was further contended by the appellant in view of the said pleadings of his father an issue No. 9 to the following effect was framed by the trial court: 5."9. Are defendants Nos. 4 to 8 never stood sureties as alleged in paras 28, 31 and 33 of the W.S.?" 6. and that this issue was not at all decided by the trial court in the judgment which led to the decree. He also alleged that there was sufficient material on record to show that the bank earlier to the filing of the suit itself had discharged the original 8th defendant i.e. his father as a guarantor. He also contended that ....
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....e decree cannot be set aside merely on the ground of irregularity in service of summons. 9. On appeal High Court also proceeded on a tangent without deciding the question of service of notice. The High Court was influenced more by the fact that the estate of the deceased was sufficiently represented and what was inherited by the appellant was only a limited share. Further, none of the defendants who were parties in the suit had appealed against the original decree. 10. Learned counsel for the appellant contended before us that both the courts below failed in not properly appreciating the case of the appellant inasmuch as it was his primary ground that he was impleaded as a party to the suit without being served with the notice of applicat....
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....rd was made. Having made such application, it was the bounden duty of the plaintiff as also that of the court to see that all the legal heirs - the proposed legal representatives (including the appellant) were duly served. It is not in dispute that at the relevant point of time when the notice of application was issued by the trial court, the appellant was serving in Gonda District and was not in Pilibhit to which address the notice of substitution was sent. It is not even the case of the plaintiff that at the time of service of notice the appellant in fact was present in the address to which the notice was sent even on a visiting basis. Therefore, it is reasonable to presume that the appellant was not served with the notice of substitution....
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....e is a case of non-service of notice on the appellant and not a case of mere irregularity in the service of summons. Secondly, a plea was raised in the suit that the guarantee given by late Satish Chandra Agarwal stood discharged on account of another guarantee in supersession of or in lieu of the guarantee given by late Satish Chandra Agarwal having been accepted by the petitioner. On such pleadings, issue Nos.9 and 12 were framed but were not decided. In the peculiar facts and circumstances of this case failure to determine the issue as to the guarantee furnished by late Satish Chandra Agarwal having been discharged and consequently the liability of late Satish Chandra Agarwal and his legal heirs having come to an end did spell out prejud....