Defendant who refused summons not entitled to seek setting aside of ex-parte decree u/s Order IX Rule 13 CPC

In the matter of Vishwabandhu vs.Sri Krishna and Anr decided by the Hon’ble Supreme Court on 29.09.2021

FACTS: In this case, the defendant had refused to accept the summons issued in the suit. After the suit was decreed ex-parte, execution proceedings were initiated. The defendant duly acknowledged the receipt of auction notice with respect to the suit property. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code.

Though the trial court rejected the application, the High Court allowed the same in appeal and observed that the defendant was not vigilant as he ought to have been, it added that the “conduct does not on the whole warrant to castigate him as an irresponsible litigant”

OBSERVATIONS: Referring to Sub-Rule (5) of Order V Rule 9 of the Code it was observed inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The bench also referred to Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.

The Hon’ble Court also referred to the decision in C.C. Alavi Haji vs. Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 has held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not instation”, due service has to be presumed.

In the present case, applying the said observations and the fact that the auction sale was completed and sale certificate had also been issued, the Hon’ble Apex Court held that the defendant was not vigilant and reversed the order of the Hon’ble High Court.