VISHWABANDHU versus SRI KRISHNA AND ANR. on 29 September 2021

1. Delay condoned.

2. Leave granted.

3. These appeals challenge:(i) the Judgment and order dated21.04.2006 passed by the High Court[1] in FAFO (First Appeal From Order)No.2473 of 2005; and(ii) the Order dated 18.10.2019 passed by theHigh Court in CMRA (Civil Miscellaneous Recall Application) No. 107616of 2009 preferred in said FAFO No. 2473 of 2005.

4. Respondent No.2 herein filed a Suit in the court of Civil Judge(Junior Division), Mainpuri, Uttar Pradesh, for recovery of money alongwith interest submitting inter alia that the defendant in the Suit i.e.Respondent No.1 herein had failed to refund Rs.22,400/- received byhim towards part sale consideration for sale of property comprising ofGata No.1616/0.93 acres situated at Nangle Rate, Village PanchayatMainpuri Rural, Tehsil and District Mainpuri. The Suit was filed on25.05.1993 and as the summons sent to Respondent No.1 by registeredpost was received back with postal endorsement of ‘refusal’, the orderdated 19.02.1997 passed by the Trial Court was :- “Case called out. On behalf of plaintiff her counsel is present.Nobody present on behalf of defendant. The registered noticewhich was sent to defendant, had received with remark refusal.Notice is deemed to be sufficient. No one is present on behalf ofdefendant, the defendant is being proceed ex-party accordingly.Put up for the ex-parte proceeding on 01.04.1997.”

The matter was thereafter adjourned on few dates and finally on16.09.1997 an ex-parte decree was passed in favour of RespondentNo.2 in the sum of Rs.22,400/- along with interest @ 9%.

5. In the application filed by Respondent No.2 seeking executionof the decree dated 16.09.1997, the property admeasuring 0.93 acreswhich was subject matter of the agreement to sell, was sought to beattached vide notice of attachment dated 29.05.1999. Later, the propertywas attached vide order dated 04.12.1999 on the basis of a report filedby the Ameen. The report indicated that since the judgment debtor i.e.

1 High Court of Judicature at Allahabad

A

B

C

D

E

F

G

H

ARespondent No.1 could not be found on search, drum beats were carriedout at the place of residence of Respondent No.1.

6. On 29.01.2000 the following order was passed by the trial court:- “Case presented today. Case called out. Decree Holder with hercounsel present. The report of attachment of property is filed.BThe decree holder shall take steps for notice under O XXI Rule66 within 15 days.”

7. On 04.04.2000 a report was filed by the Process Server to thefollowing effect:- C“Today 02.04.2000 I came to Nagla Rate district Mainpuri, andsearched Sri Krishna, and served a notice on him and the receiptof the same have been duly acknowledged by him by putting himsignature on the copy of notice.”

8. In the aforesaid circumstances, the executing court issuedDwarrant of sale of property on 06.12.2000 whereunder the property wasdirected to be auctioned on 16.12.2000 and the warrant was to be returnedon or before 23.12.2000, duly executed. Accordingly, on 16.12.2000 theproperty was put to auction in which the present appellant as the highestbidder with a bid of Rs.1,25,000/-. In accordance with the prescribedprocedure, 1/4[th] of the amount was deposited by the appellant.E9. On 19.12.2000 Respondent No.1, for the first time, appearedbefore the court and filed an application under Order IX Rule 13 ofCode of Civil Procedure (‘the Code’, for short) praying that the ex-parte decree dated 16.09.1997 be set aside.

In the application it was asserted:-F

In the application it was asserted:-F

“…The applicant executed an agreement to sale in favour ofplaintiff, and the applicant was always ready to execute the sametill today. Applicant have no money. That the plaintiff by misleadingthe court and got passed an ex-parte judgment on 16.09.1997 inher favour and an execution petition filed before the Hon’ble Court.GThat no summon or notice issued from this executing court. Thatthe plaintiff get the execution proceeding transferred to the courtof Civil Judge (Senior Division) Mainpuri, which is pending there,by which the applicant facing the irreparable loss and the applicanthad not defaulted intentionally and applicant have no knowledgeHabout suit as well as execution proceeding. Due to ex-parte Judgment the applicant facing irreparable loss and injury. In theinterest of justice the judgment and decree dated 16.09.1997 tobe set aside. The applicant got the knowledge of the suit andexecution proceeding from the information given by plaintiff’shusband on 16.12.2000, so this application is within time.”

10. The aforesaid application was dismissed on 05.07.2005 by theAdditional District Judge, Mainpuri with following observations:- “It is also noted that after passing the ex-parte judgment and decreethe respondent initiated the execution proceeding which wasregistered as 04/1998. In this execution proceeding the summonswere sufficiently served on applicant. In spite of this the applicantfiled a restoration application on 19.12.2000. From the knowledgeof execution proceedings on 02.04.2000, the present applicationis filed after more than 8 months from the knowledge about thependency of the execution proceedings, indicates that in spite ofhaving specific knowledge of the same he has filed this applicationafter the period of limitation and the reason which was shown inapplications is totally false, frivolous and baseless. That no evidenceis produced to deny the report of the process server dated04.04.2000 in which he stated that on 02.04.2000 the summonswas duly served on applicant, nor the said report is to bemanipulated.”

11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of2005 in the High Court challenging the order dated 05.07.2005. Duringthe pendency of said FAFO, sale certificate was issued in favour of theAppellant on 30.03.2006 by virtue of order dated 10.01.2006 passed bythe concerned court in Execution No.4 of 1998.

12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by theHigh Court with following observations:- “In the instant case, the appellant appears not to be vigilant as heought to have been, yet the conduct does not on the whole warrantto castigate him as an irresponsible litigant. Further, theinconvenience caused to the plaintiff respondent on account ofthe absence of appellant may be compensated by wardingappropriate cost. In the interest of justice and under the peculiarcircumstances of the case, I set aside the impugned judgment anddecree.

A

BC

D

E

F

G

H

AIn the result of this appeal is allowed with the costs ofRs.1000/-. The trial court is directed to decide the case on meritsafter affording opportunities to the parties.”

13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009seeking recall inter alia on the ground that Respondent No.1 had fullBknowledge of the proceedings since 17.02.1997 and had intentionallyand deliberately avoided to appear and contest the matter. The applicationwas, however, dismissed by the High Court by its order dated 18.10.2019observing that after the order dated 21.04.2006 passed by the High Court,the Suit was restored to the file and the issues were already framed.

14. These two orders dated 21.04.2006 and 18.10.2019 areCpresently under challenge.

15. While issuing notice in the instant appeals, by Order dated20.02.2020 passed by this Court,further proceedings were stayed.

16. We heard Mr. Gopal Sankaranarayanan, learned SeniorDAdvocate for the appellant and Mr. Pradeep Kumar Yadav, learnedAdvocate for Respondent No.1.

17. It was submitted by Mr. Sankaranarayanan, learned SeniorAdvocate that Respondent No.1 was always aware of the proceedingsand had deliberately avoided to appear and contest the matter; that hisEstand in the application under Order IX Rule 13 of the Code itself indicatedthat he was ready to execute sale deed in favour of the original plaintiffand that he had no money to repay the amount received by him way ofpart consideration. It was submitted that as an auction purchaser theAppellant had complied with all the legal requirements and sale certificatewas also issued in his favour.F

18. On the other hand, Mr. Pradeep Kumar Yadav, learnedAdvocate submitted that the orders passed by the High Court did notcall for any interference and that the Suit having been restored to thefile, the matter be allowed to be taken to the logical conclusion.

G19. The summons issued by registered post was received backwith postal endorsement of refusal, as would be clear from the orderdated 19.02.1997. Sub-Rule (5) of Order V Rule 9 of the Code statesinter alia that if the defendant or his agent had refused to take deliveryof the postal article containing the summons, the court issuing thesummons shall declare that the summons had been duly served on theH

defendant. The order dated 19.02.1997 was thus completely in conformitywith the legal requirements. In a slightly different context, whileconsidering the effect of Section 27 of the General Clauses Act, 1897, aBench of three Judges of this Court in C.C. Alavi Haji vs. PalapettyMuhammed and Anr[2] made following observations:- “14. Section 27 gives rise to a presumption that service of noticehas been effected when it is sent to the correct address byregistered post. In view of the said presumption, when statingthat a notice has been sent by registered post to the address ofthe drawer, it is unnecessary to further aver in the complaint thatin spite of the return of the notice unserved, it is deemed to havebeen served or that the addressee is deemed to have knowledgeof the notice. Unless and until the contrary is proved by theaddressee, service of notice is deemed to have been effected atthe time at which the letter would have been delivered in theordinary course of business. This Court has already held that whena notice is sent by registered post and is returned with a postalendorsement “refused” or “not available in the house” or “houselocked” or “shop closed” or “addressee not in station”, due servicehas to be presumed. [Vide Jagdish Singh v. Natthu Singh[3]:State of M.P. vs. Hiralal & Ors.[4] and V. Raja Kumari vs. P.Subbarama Naidu & Anr.[5]]. … ….”

20. Even after the passing of the ex-parte decree, the report filedby the process server on 04.04.2000 clearly indicated that notice wasserved upon Respondent No.1 which was duly acknowledged by him byputting signature on the copy of the notice. Despite such knowledge,Respondent No.1 allowed the property to be put to auction in the monthof December, 2000. It was only after the auction was so undertaken,that he preferred the application under Order IX Rule 13 of the Code.The High Court, therefore, rightly observed in its order dated 21.04.2006that Respondent No.1 was not vigilant. Yet, the High Court proceededto grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact thatthe auction was allowed to be undertaken, Respondent No. 1 was 2 AIR 2007 SC (Supp) 17053AIR 1992 SC 1604

4 (1996) 7 SCC 5235 (2004) 8 SCC 774

A

BC

D

E

F

G

H

Adisentitled from claiming any relief as was prayed for. Further, aftercompletion of proceedings in auction, sale certificate was also issued infavour of the Appellant.

22. We, therefore, allow these Appeals, set aside the orders dated21.04.2006 and 18.10.2019 passed by the High Court and dismiss theBapplication preferred by Respondent No.1 under Order IX Rule 13 ofthe Code. No costs.

Divya Pandey

Appeals allowed.

C

D

E

F

G

H