NDLI: G.n.r. Babu @ S.n. Babu Vs. Dr. B.c. Muthappa & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 1908
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Code of Civil Procedure, 1908 – ss. 96, 105 & Or.IX, r.13 – Ex-parte decree against defendant – Appeal u/s. 96 – Scope of adjudication – Ex-parte decree was passed against the appellant-defendant in the suit filed by first respondent – Plea of the appellant that the High Court in appeal u/s. 96 while confirming the decree on merits proceeded on the basis that the issue regarding the failure to serve the suit summons can be agitated only in an application filed for setting aside ex-parte decree by invoking r.13 of Or.IX – Correctness of – Held: The appellant while challenging ex- parte decree by filing an appeal, can always point out from the record of the trial court that the order passed to proceed with the suit ex-parte against him was illegal – Though he would not be entitled to lead evidence in appeal for making out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in proceeding ex-parte against him – Only when the application made by a defendant u/r.13 of Or. IX is dismissed that such a defendant cannot agitate in the appeal against ex-parte decree that the order directing that the suit shall proceed ex-parte was illegal or incorrect – However, in the present case, the appellant had not filed application u/r.13 of Or.IX, therefore, such a contention can be raised by him – Also, on facts proceeding ex-parte against the appellant was not warranted – Impugned order passed by the High Court as well as the decree of the Trial Court set aside – Further, on facts the prayer for remand of the suit is accepted – Appellant to pay costs of Rs. 2,00,000/- to the first respondent – Original suit restored. Code of Civil Procedure, 1908 – s.105 – Held: Under s. 105 when a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the Memorandum of Appeal.Code of Civil Procedure, 1908 – Or.V, r.17 – Requirement under – Non-fulfillment of – Ex-parte decree passed against the appellant and second respondent observing that they did not appear despite the service of summons – Held: Record shows that an attempt to serve summons by the regular mode failed as the premises of the appellant were found to be locked – Trial Court did not direct affixing of a copy of the summons on the outer door of the premises in which the appellant was residing, as required by r.17 of Or.V – Without verifying whether the address of the appellant, as shown in the cause title of the suit was correct, summons was ordered to be served through Registered Post AD – Decree set aside.
Judge	Hon'ble Mr. Justice Abhay.S. Oka
Neutral Citation	2022 INSC 931
Petitioner	G.n.r. Babu @ S.n. Babu
Respondent	Dr. B.c. Muthappa & Ors.
SCR	[2022] 11 S.C.R. 203
Judgement Date	2022-09-06
Case Number	6228

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