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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. OF 2021
(Arising out of Special Leave Petition (Civil)Nos……..…………………...of 2021)
(Arising out of Special Leave Petition (Civil)D.No.1855 of 2020)
VISHWABANDHU …Appellant
Versus
SRI KRISHNA AND ANR. …Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. Delay condoned.
2. Leave granted.
3. These appeals challenge: (i) the Judgment and order dated 21.04.2006
passed by the High Court1
in FAFO (First Appeal From Order) No.2473 of
2005; and (ii) the Order dated 18.10.2019 passed by the High Court in CMRA
(Civil Miscellaneous Recall Application) No. 107616 of 2009 preferred in
said FAFO No. 2473 of 2005.
1 High Court of Judicature at Allahabad
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4. Respondent No.2 herein filed a Suit in the court of Civil Judge (Junior
Division), Mainpuri, Uttar Pradesh, for recovery of money along with interest
submitting inter alia that the defendant in the Suit i.e. Respondent No.1 herein
had failed to refund Rs.22,400/- received by him towards part sale
consideration for sale of property comprising of Gata No.1616/0.93 acres
situated at Nangle Rate, Village Panchayat Mainpuri Rural, Tehsil and
District Mainpuri. The Suit was filed on 25.05.1993 and as the summons sent
to Respondent No.1 by registered post was received back with postal
endorsement of ‘refusal’, the order dated 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 notice which was sent to defendant, had
received with remark refusal. Notice is deemed to be
sufficient. No one is present on behalf of defendant, 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 on
16.09.1997 an ex-parte decree was passed in favour of Respondent No.2 in
the sum of Rs.22,400/- along with interest @ 9%.
5. In the application filed by Respondent No.2 seeking execution of the
decree dated 16.09.1997, the property admeasuring 0.93 acres which was
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subject matter of the agreement to sell, was sought to be attached vide notice
of attachment dated 29.05.1999. Later, the property was attached vide order
dated 04.12.1999 on the basis of a report filed by the Ameen. The report
indicated that since the judgment debtor i.e. Respondent No.1 could not be
found on search, drum beats were carried out 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 her counsel present. The report of attachment of
property is filed. The decree holder shall take steps for
notice under O XXI Rule 66 within 15 days.”
7. On 04.04.2000 a report was filed by the Process Server to the following
effect:-
“Today 02.04.2000 I came to Nagla Rate district
Mainpuri, and searched Sri Krishna, and served a notice
on him and the receipt of the same have been duly
acknowledged by him by putting him signature on the
copy of notice.”
8. In the aforesaid circumstances, the executing court issued warrant of
sale of property on 06.12.2000 whereunder the property was directed to be
auctioned on 16.12.2000 and the warrant was to be returned on or before
23.12.2000, duly executed. Accordingly, on 16.12.2000 the property was put
to auction in which the present appellant as the highest bidder with a bid of
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Rs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the
amount was deposited by the appellant.
9. On 19.12.2000 Respondent No.1, for the first time, appeared before the
court and filed an application under Order IX Rule 13 of Code 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:-
“…The applicant executed an agreement to sale in
favour of plaintiff, and the applicant was always ready
to execute the same till today. Applicant have no
money. That the plaintiff by misleading the court and
got passed an ex-parte judgment on 16.09.1997 in her
favour and an execution petition filed before the
Hon’ble Court. That no summon or notice issued from
this executing court. That the plaintiff get the execution
proceeding transferred to the court of Civil Judge
(Senior Division) Mainpuri, which is pending there, by
which the applicant facing the irreparable loss and the
applicant had not defaulted intentionally and applicant
have no knowledge about suit as well as execution
proceeding. Due to ex-parte Judgment the applicant
facing irreparable loss and injury. In the interest of
justice the judgment and decree dated 16.09.1997 to be
set aside. The applicant got the knowledge of the suit
and execution proceeding from the information given
by plaintiff’s husband on 16.12.2000, so this application
is within time.”
10. The aforesaid application was dismissed on 05.07.2005 by the
Additional District Judge, Mainpuri with following observations:-
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“It is also noted that after passing the ex-parte judgment
and decree the respondent initiated the execution
proceeding which was registered as 04/1998. In this
execution proceeding the summons were sufficiently
served on applicant. In spite of this the applicant filed
a restoration application on 19.12.2000. From the
knowledge of execution proceedings on 02.04.2000, the
present application is filed after more than 8 months
from the knowledge about the pendency of the
execution proceedings, indicates that in spite of having
specific knowledge of the same he has filed this
application after the period of limitation and the reason
which was shown in applications is totally false,
frivolous and baseless. That no evidence is produced to
deny the report of the process server dated 04.04.2000
in which he stated that on 02.04.2000 the summons was
duly served on applicant, nor the said report is to be
manipulated.”
11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the
High Court challenging the order dated 05.07.2005. During the pendency of
said FAFO, sale certificate was issued in favour of the Appellant on
30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court
in Execution No.4 of 1998.
12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court
with following observations:-
“In the instant case, the appellant appears not to be
vigilant as he ought to have been, yet the conduct does
not on the whole warrant to castigate him as an
irresponsible litigant. Further, the inconvenience
caused to the plaintiff respondent on account of the
absence of appellant may be compensated by warding
appropriate cost. In the interest of justice and under the
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peculiar circumstances of the case, I set aside the
impugned judgment and decree.
In the result of this appeal is allowed with the costs of
Rs.1000/-. The trial court is directed to decide the case
on merits after affording opportunities to the parties.”
13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking
recall inter alia on the ground that Respondent No.1 had full knowledge of
the proceedings since 17.02.1997 and had intentionally and deliberately
avoided to appear and contest the matter. The application was, however,
dismissed by the High Court by its order dated 18.10.2019 observing 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 are presently under
challenge.
15. While issuing notice in the instant appeals, by Order dated 20.02.2020
passed by this Court, further proceedings were stayed.
16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for
the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for
Respondent No.1.
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17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate
that Respondent No.1 was always aware of the proceedings and had
deliberately avoided to appear and contest the matter; that his stand in the
application under Order IX Rule 13 of the Code itself indicated that he was
ready to execute sale deed in favour of the original plaintiff and that he had
no money to repay the amount received by him way of part consideration. It
was submitted that as an auction purchaser the Appellant had complied with
all the legal requirements and sale certificate was also issued in his favour.
18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate
submitted that the orders passed by the High Court did not call for any
interference and that the Suit having been restored to the file, the matter be
allowed to be taken to the logical conclusion.
19. The summons issued by registered post was received back with postal
endorsement of refusal, as would be clear from the order dated 19.02.1997.
Sub-Rule (5) of Order V Rule 9 of the Code states 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 order dated 19.02.1997
was thus completely in conformity with the legal requirements. In a slightly
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different context, while considering the effect of Section 27 of the General
Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji
vs. Palapetty Muhammed and Anr2 made following observations:-
“14. Section 27 gives rise to a presumption that service
of notice has been effected when it is sent to the correct
address by registered post. In view of the said
presumption, when stating that a notice has been sent by
registered post to the address of the drawer, it is
unnecessary to further aver in the complaint that in spite
of the return of the notice unserved, it is deemed to have
been served or that the addressee is deemed to have
knowledge of the notice. Unless and until the contrary
is proved by the addressee, service of notice is deemed
to have been effected at the time at which the letter
would have been delivered in the ordinary course of
business. This Court has already 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 in
station”, due service has to be presumed. [Vide Jagdish
Singh v. Natthu Singh3
: 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 filed by the
process server on 04.04.2000 clearly indicated that notice was served upon
Respondent No.1 which was duly acknowledged by him by putting signature
on the copy of the notice. Despite such knowledge, Respondent No.1 allowed
2 AIR 2007 SC (Supp) 1705
3 AIR 1992 SC 1604
4
(1996) 7 SCC 523
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(2004) 8 SCC 774
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the property to be put to auction in the month of 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 21.04.2006 that Respondent No.1 was not vigilant. Yet, the
High Court proceeded to grant relief in favour of Respondent No.1.
21. In the light of the features indicated above and the fact that the auction
was allowed to be undertaken, Respondent No. 1 was disentitled from
claiming any relief as was prayed for. Further, after completion of
proceedings in auction, sale certificate was also issued in favour of the
Appellant.
22. We, therefore, allow these Appeals, set aside the orders dated
21.04.2006 and 18.10.2019 passed by the High Court and dismiss the
application preferred by Respondent No.1 under Order IX Rule 13 of the
Code. No costs.
……………………………..J.
[Uday Umesh Lalit]
……………………………..J.
[S. Ravindra Bhat]
New Delhi;
September 29, 2021.
