Summary
The Supreme Court upheld setting aside an ex parte specific-performance decree because service procedure was defective. The bailiff had not complied with Order V Rule 17, and the trial court mechanically authorized substituted service without recording the required satisfaction. Publication in a newspaper did not answer those antecedent failures. The defendant could challenge the ex parte decree through a first appeal under Section 96, independently of the alternative Order IX Rule 13 remedy, subject to the explained limits on overlapping proceedings.
Issues
- Whether mechanical authorization of newspaper service justified proceeding ex parte.
- Whether a first appeal could challenge the ex parte decree on that basis.
Provisions considered
- Order V Rule 17, Code of Civil Procedure, 1908The bailiff’s failure to follow the prescribed affixation procedure was an antecedent defect in service. (¶¶ 14, 15)
Held
- Substituted service is exceptional. The court must apply its mind and indicate satisfaction that the defendant is avoiding service or that ordinary service cannot be effected for another reason. A cryptic mechanical order did not meet that requirement here. (¶¶ 6, 11, 14, 15)
- The bailiff returned summons without complying with Rule 17, and the trial court also overlooked the High Court Civil Manual guidance. The argument that newspaper publication dispensed with further affixation under Rule 20 did not answer those prior defects and lack of judicial satisfaction. (¶ 15)
- A defendant may appeal an ex parte decree under Section 96 on the merits or the impropriety of proceeding ex parte. An Order IX Rule 13 application is another remedy, and both can initially be pursued, subject to merger and finality restrictions explained in Bhanu Kumar Jain. The defendant’s first appeal here validly established grounds for setting aside the decree. (¶¶ 16, 17)
Result
Appeal dismissed; High Court’s order setting aside the ex parte specific-performance decree sustained. No costs.