Summary
The Court restored refusal to set aside an ex parte money decree. The original registered summons returned endorsed as refused, and the defendant later personally acknowledged an execution notice. He nevertheless waited until after the property auction to seek relief, asserting lack of knowledge. The High Court’s indulgence despite this record was unjustified, particularly after the auction purchaser had obtained a sale certificate. Its orders were set aside and the Order IX Rule 13 application dismissed.
Issues
- Whether the refusal endorsement and acknowledged execution notice defeated the defendant’s claim of ignorance of the proceedings.
- Whether the High Court was justified in setting aside the decree after the auction.
Provisions considered
- Order V Rule 9(5); Order IX Rule 13, Code of Civil Procedure, 1908The Court treated the postal refusal as sufficient service and held that the demonstrated notice and subsequent inaction disentitled the defendant to the relief sought against the ex parte decree. (¶¶ 19, 20, 21, 22)
- Section 27, General Clauses Act, 1897The Court referred to the rebuttable presumption of postal service explained in C.C. Alavi Haji when evaluating the refusal endorsement. (¶ 19)
Held
- The registered summons returned with a postal endorsement of refusal. The trial court’s declaration of sufficient service conformed to the requirement identified in Order V Rule 9(5). The cited postal-service presumption was rebuttable, rather than an irrebuttable rule governing every returned article. (¶¶ 4, 19)
- The process server’s report established the defendant’s signed acknowledgment of the execution notice months before the auction. He did not disprove that report and waited until after the sale to seek setting aside of the decree. His claimed lack of knowledge did not justify relief on this record. (¶¶ 7, 9, 10, 20)
- Despite noting his lack of vigilance, the High Court granted relief without giving proper effect to these circumstances. The completed auction and subsequent sale certificate further supported refusal. Both High Court orders were set aside and the defendant’s application dismissed. (¶¶ 11, 12, 20, 21, 22)
Result
Appeals allowed without costs. High Court orders set aside; defendant’s Order IX Rule 13 application dismissed.