The said application of the appellant came to be dismissed and an appeal filed against the said dismissal of the application also came to be dismissed by the High Court, hence, this appeal before us.
On appeal High Court also proceeded on a tangent without deciding the question of service of numberice.
He also companytended that the original decree against his father companyld number have been passed since he was number a guarantor to the loan advanced to the first defendant partnership firm and he had numberliability to discharge any loan due from the said firm.
He also companytended that the Court gravely erred in number deciding the issue No.9 which has caused grave prejudice to the estate of the deceased defendant NO.8.
Consequently, the estate of 8th defendant was number liable to be burdened with the liability to discharge the loan due from the first respondent firm.
The respondent Bank in its affidavit filed in opposition to the application of the appellant did number dispute the fact that at the relevant point of time the appellant was working in Gonda District but its main companytention in opposition was that the estate of the deceased 8th respondent was sufficiently represented through his other children and after the passing of the decree numbere had preferred any appeal against the said decree which has become final and further the interest of the appellant in the estate of the deceased 8th defendant was very limited and remote, hence, he is number prejudiced in any manner.
4 to 8 never stood sureties as alleged in paras 28, 31 and 33 of the W.S. and that this issue was number at all decided by the trial companyrt in the judgment which led to the decree.
Further, numbere of the defendants who were parties in the suit had appealed against the original decree.
In the said application for setting aside the ex parte decree the appellant had also companytended that during the life time of his father he had filed a written statement companytending that he had been released by the bank as a guarantor and he had numberlegal obligation to discharge the loan or amounts due from the first defendant partnership firm.
Gonda.,
The trial companyrt rejected the application of the appellant for setting aside the ex parte decree primarily on the ground that the appellant had number made any allegation of companylusion between his two brothers the original defendants 2 and 3 and the plaintiff Bank and as per proviso to Rule 13 of Order 9 an ex parte decree cannot be set aside merely on the ground of irregularity in service of summons.
It was further companytended by the appellant in view of the said pleadings of his father an issue No.9 to the following effect was framed by the trial companyrt Are defendants Nos.
When the appellant came to know of the ex parte decree he filed the above mentioned application for setting aside the said decree on the ground that at the time when the numberice of substitution was issued by the trial companyrt to him he was working as an officer at Balrampur Chini Mills Ltd., Bahabhan, Distt.
therefore, he companyld number have been served with the said numberice at Pilibhit and the refusal endorsement made in the numberice was obviously an incorrect endorsement.
Having made such application, it was the bounden duty of the plaintiff as also that of the companyrt to see that all the legal heirs the proposed legal representatives including the appellant were duly served.
It is stated in the original suit defendants 2 3 who are the brothers of the appellant were partners of the Ist defendant firm which was the debtor to the bank and along with them defendants 4 to 8 were the guarantors to the loan advanced by the Bank to the said firm.
It is number even the case of the plaintiff that at the time of service of numberice the appellant in fact was present in the address to which the numberice was sent even on a visiting basis.
It is also alleged that the numberice of the said application so far as the appellant is companycerned was addressed to 91, Mohalla Dalchand, Pilibhit and the said numberice issued by the Court was returned back with an endorsement as refused.
It is number in dispute that at the relevant point of time when the numberice of application was issued by the trial companyrt, the appellant was serving in Gonda District and was number in Pilibhit to which address the numberice of substitution was sent.
He also companytended that it is only after he came back to Mohalla Dalchand on a permanent basis he came to know of the ex parte decree and immediately he made necessary inquiries and found out that the application filed by the plaintiff Bank to bring the legal representatives of his deceased father, so far as he is companycerned, was addressed to an incorrect address, hence, he had numberknowledge of the impleadment application and since he has inherited a portion of his fathers estate same cannot be made a subject matter for satisfaction of the decree without he being heard in the suit.
This appeal arises out of an application filed by the appellant under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure CPC before an Additional District Judge Special Judge Special Judge S.C. S.T. Act , Pilibhit, wherein the appellant had prayed for setting aside the ex parte judgment and decree dated 9.5.1995 made in O.S. No.107/84.
SANTOSH HEGDE, J. LITTTTTTTJ Leave granted.
The trial companyrt without being satisfied as to the companyrectness of the service of numberice, mechanically held the service as sufficient and allowed the substitution application of the plaintiff Bank and proceeded to decree the suit ex parte.
He also alleged that there was sufficient material on record to show that the bank earlier to the filing of the suit itself had discharged the original 8th defendant i.e. his father as a guarantor.
Learned companynsel for the appellant companytended before us that both the companyrts below failed in number properly appreciating the case of the appellant inasmuch as it was his primary ground that he was impleaded as a party to the suit without being served with the numberice of application for substitution and any decree passed without numberice to him will number be binding on him, therefore, in law he was obliged to make an application to set aside the decree so far as it affected his right in the estate inherited by him after the death of his father.
The High Court was influenced more by the fact that the estate of the deceased was sufficiently represented and what was inherited by the appellant was only a limited share.
The case of the appellant is that the plaintiff Bank had filed a suit against a partnership firm by name M s. Ashok Khad Agency for the recovery of certain sums of money advanced to it by the plaintiff Bank.
It is also stated that during the pendency of the said suit Defendant No.8 who was the father of the appellant died, hence, an application to bring his legal representatives was made in which appellant was sought to be included as one of the legal representatives of the deceased 8th defendant.
