Mostt. Dhanrajia Devi v. Md. Aslam

25.05.2010 passed by the learned Sub-Judge 1st , Madhepura in Miscellaneous Case No. 28 of 2004, whereby the learned Judge has been pleased to allow the application filed on behalf of the defendant under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) and has been pleased to set aside the ex-parte judgment and decree dated 27.04.2004 passed in Title Suit No. 72 of 2001. Learned counsel for the petitioners while referring to the Patna High Court C.R. No.733 of 2010 (5) dt.26-06-2012 2 impugned order has submitted that several times notices were issued and was recorded by the trial court as having been validly served and it is only thereafter that the title suit has proceeded. It is stated that after passing of the judgment and the decree, the defendants appeared raising issues of non service of summons and the learned court below without having regard to the factual position and without taking note of the evidence available on record of the proceedings, has been pleased to allow the same. With reference to the provisions of Order IX Rule 13 of the Code it is stated that the circumstances in the present case did not warrant indulgence with the order passed in the suit proceedings. Having heard learned counsel for the parties and having perused the materials on record as also the order impugned in the present case it is manifest that the learned court below has examined the circumstances and after perusal of the evidence available on record has come to a conclusion that the summons were not validly served on the defendants and even the paper publication was not in a manner as required under law. Referring to the provisions of Order V Rule 18 it was held that the summons were not properly served on the defendants and taking note of the circumstances the order impugned has been passed. I find no reason to interfere with the order passed by the Patna High Court C.R. No.733 of 2010 (5) dt.26-06-2012 3 learned court below. The application is dismissed. As it is an old matter, learned court below would be well advised to take up the matter on priority basis and dispose of the same in an expeditious manner. S.Sb/- (Jyoti Saran, J)