Application for setting aside ex parte decree-On ground summons of suit not duly served on them
Sec. 27 O. 5, R. 20(3) and O. 9 R.13-Application for setting aside ex parte decree-On ground summons of suit not duly served on them-Application rejected holding the summons duly served-Summons published in newspaper had material infirmity therein, which rendered summons so also the service on the defendants bad in lawThe material infirmity in the summons was that it did not mention any specific day, date, year and time for defendants’ appearance in the Court-This being the requirement of S. 27 r/w O. V, R. 20(3) and Process-I-A of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filing-Rejection improper. In other words, the summons dated 17.11.2004 published in the papers (Times of India and Dainik Bhaskar) had material infirmity therein, which rendered the summons so also the service made on the defendants bad in law. The material infirmity in the summons was that it did not mention any specific day, date, year and time for the defendants’ appearance in the Court. This being the requirement of Section 27 read with Order V Rule 20(3) and Process-IA of Appendix-B, it was mandatory for the Court to mention the specific working day, date, year and time in the columns meant for such filing. It would have enabled the defendants to appear before the Court on the date so fixed therein. It is a settled rule of interpretation that when the legislature provides a particular thing to be done in a particular manner then such thin has to be done in the same prescribed manner and in no other manner. It was, however, brought to our notice that during the pendency of this appeal, the appellant was asked to deposit a sum of Rs. 47.50 lakhs which they have deposited. Now that the suit is restored to its original file for its decision on merits, we make it clear that the deposit and withdrawal of Rs. 47.50 lakhs would be subject to the final result of the suit.
Case Law:
Auto Cars V. Trimuti Cargo Movers Pvt. Ltd.,
Citation:
2018(2) ARC 456