Vishwabandhu vs Sri Krishna

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021 (Arising out of Special Leave Petition (Civil)Nos……..…………………...of 2021) (Arising out of Special Leave Petition (Civil)D.No.1855 of 2020)

VISHWABANDHU …Appellant

Versus

SRI KRISHNA AND ANR. …Respondents

JUDGMENT

Uday Umesh Lalit, J.

1. Delay condoned.

2. Leave granted.

3. These appeals challenge: (i) the Judgment and order dated 21.04.2006

passed by the High Court1 in FAFO (First Appeal From Order) No.2473 of

2005; and (ii) the Order dated 18.10.2019 passed by the High Court in CMRA

(Civil Miscellaneous Recall Application) No. 107616 of 2009 preferred in

Signature Not Verified said FAFO No. 2473 of 2005.

Digitally signed by Dr. Mukesh Nasa Date: 2021.09.29 18:49:11 IST Reason: 1 High Court of Judicature at Allahabad 2

4. Respondent No.2 herein filed a Suit in the court of Civil Judge (Junior

Division), Mainpuri, Uttar Pradesh, for recovery of money along with interest

submitting inter alia that the defendant in the Suit i.e. Respondent No.1 herein

had failed to refund Rs.22,400/- received by him towards part sale

consideration for sale of property comprising of Gata No.1616/0.93 acres

situated at Nangle Rate, Village Panchayat Mainpuri Rural, Tehsil and

District Mainpuri. The Suit was filed on 25.05.1993 and as the summons sent

to Respondent No.1 by registered post was received back with postal

endorsement of ‘refusal’, the order dated 19.02.1997 passed by the Trial Court

was :-

“Case called out. On behalf of plaintiff her counsel is present. Nobody present on behalf of defendant. The registered notice which was sent to defendant, had received with remark refusal. Notice is deemed to be sufficient. No one is present on behalf of defendant, the defendant is being proceed ex-party accordingly. Put up for the ex-parte proceeding on 01.04.1997.”

The matter was thereafter adjourned on few dates and finally on

16.09.1997 an ex-parte decree was passed in favour of Respondent No.2 in

the sum of Rs.22,400/- along with interest @ 9%.

5. In the application filed by Respondent No.2 seeking execution of the

decree dated 16.09.1997, the property admeasuring 0.93 acres which was 3

subject matter of the agreement to sell, was sought to be attached vide notice

of attachment dated 29.05.1999. Later, the property was attached vide order

dated 04.12.1999 on the basis of a report filed by the Ameen. The report

indicated that since the judgment debtor i.e. Respondent No.1 could not be

found on search, drum beats were carried out at the place of residence of

Respondent No.1.

6. On 29.01.2000 the following order was passed by the trial court:-

“Case presented today. Case called out. Decree Holder with her counsel present. The report of attachment of property is filed. The decree holder shall take steps for notice under O XXI Rule 66 within 15 days.”

7. On 04.04.2000 a report was filed by the Process Server to the following

effect:-

“Today 02.04.2000 I came to Nagla Rate district Mainpuri, and searched Sri Krishna, and served a notice on him and the receipt of the same have been duly acknowledged by him by putting him signature on the copy of notice.”

8. In the aforesaid circumstances, the executing court issued warrant of

sale of property on 06.12.2000 whereunder the property was directed to be

auctioned on 16.12.2000 and the warrant was to be returned on or before

23.12.2000, duly executed. Accordingly, on 16.12.2000 the property was put

to auction in which the present appellant as the highest bidder with a bid of 4

Rs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the

amount was deposited by the appellant.

9. On 19.12.2000 Respondent No.1, for the first time, appeared before the

court and filed an application under Order IX Rule 13 of Code of Civil

Procedure (‘the Code’, for short) praying that the ex-parte decree dated

16.09.1997 be set aside.

In the application it was asserted:-

“…The applicant executed an agreement to sale in favour of plaintiff, and the applicant was always ready to execute the same till today. Applicant have no money. That the plaintiff by misleading the court and got passed an ex-parte judgment on 16.09.1997 in her favour and an execution petition filed before the Hon’ble Court. That no summon or notice issued from this executing court. That the plaintiff get the execution proceeding transferred to the court of Civil Judge (Senior Division) Mainpuri, which is pending there, by which the applicant facing the irreparable loss and the applicant had not defaulted intentionally and applicant have no knowledge about suit as well as execution proceeding. Due to ex-parte Judgment the applicant facing irreparable loss and injury. In the interest of justice the judgment and decree dated 16.09.1997 to be set aside. The applicant got the knowledge of the suit and execution proceeding from the information given by plaintiff’s husband on 16.12.2000, so this application is within time.”

10. The aforesaid application was dismissed on 05.07.2005 by the

Additional District Judge, Mainpuri with following observations:- 5

“It is also noted that after passing the ex-parte judgment and decree the respondent initiated the execution proceeding which was registered as 04/1998. In this execution proceeding the summons were sufficiently served on applicant. In spite of this the applicant filed a restoration application on 19.12.2000. From the knowledge of execution proceedings on 02.04.2000, the present application is filed after more than 8 months from the knowledge about the pendency of the execution proceedings, indicates that in spite of having specific knowledge of the same he has filed this application after the period of limitation and the reason which was shown in applications is totally false, frivolous and baseless. That no evidence is produced to deny the report of the process server dated 04.04.2000 in which he stated that on 02.04.2000 the summons was duly served on applicant, nor the said report is to be manipulated.”

11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the

High Court challenging the order dated 05.07.2005. During the pendency of

said FAFO, sale certificate was issued in favour of the Appellant on

30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court

in Execution No.4 of 1998.

12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court

with following observations:-

“In the instant case, the appellant appears not to be vigilant as he ought to have been, yet the conduct does not on the whole warrant to castigate him as an irresponsible litigant. Further, the inconvenience caused to the plaintiff respondent on account of the absence of appellant may be compensated by warding appropriate cost. In the interest of justice and under the 6

peculiar circumstances of the case, I set aside the impugned judgment and decree.

In the result of this appeal is allowed with the costs of Rs.1000/-. The trial court is directed to decide the case on merits after affording opportunities to the parties.”

13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking

recall inter alia on the ground that Respondent No.1 had full knowledge of

the proceedings since 17.02.1997 and had intentionally and deliberately

avoided to appear and contest the matter. The application was, however,

dismissed by the High Court by its order dated 18.10.2019 observing that after

the order dated 21.04.2006 passed by the High Court, the Suit was restored to

the file and the issues were already framed.

14. These two orders dated 21.04.2006 and 18.10.2019 are presently under

challenge.

15. While issuing notice in the instant appeals, by Order dated 20.02.2020

passed by this Court, further proceedings were stayed.

16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for

the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for

Respondent No.1.

7

17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate

that Respondent No.1 was always aware of the proceedings and had

deliberately avoided to appear and contest the matter; that his stand in the

application under Order IX Rule 13 of the Code itself indicated that he was

ready to execute sale deed in favour of the original plaintiff and that he had

no money to repay the amount received by him way of part consideration. It

was submitted that as an auction purchaser the Appellant had complied with

all the legal requirements and sale certificate was also issued in his favour.

18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate

submitted that the orders passed by the High Court did not call for any

interference and that the Suit having been restored to the file, the matter be

allowed to be taken to the logical conclusion.

19. The summons issued by registered post was received back with postal

endorsement of refusal, as would be clear from the order dated 19.02.1997.

Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the

defendant or his agent had refused to take delivery of the postal article

containing the summons, the court issuing the summons shall declare that the

summons had been duly served on the defendant. The order dated 19.02.1997

was thus completely in conformity with the legal requirements. In a slightly 8

different context, while considering the effect of Section 27 of the General

Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji

vs. Palapetty Muhammed and Anr2 made following observations:-

“14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. [Vide Jagdish Singh v. Natthu Singh3 : State of M.P. vs. Hiralal & Ors.4 and V. Raja Kumari vs. P. Subbarama Naidu & Anr.5]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the

process server on 04.04.2000 clearly indicated that notice was served upon

Respondent No.1 which was duly acknowledged by him by putting signature

on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

2 AIR 2007 SC (Supp) 1705 3 AIR 1992 SC 1604 4 (1996) 7 SCC 523 5 (2004) 8 SCC 774 9

the property to be put to auction in the month of December, 2000. It was only

after the auction was so undertaken, that he preferred the application under

Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in

its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the

High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction

was allowed to be undertaken, Respondent No. 1 was disentitled from

claiming any relief as was prayed for. Further, after completion of

proceedings in auction, sale certificate was also issued in favour of the

Appellant.

22. We, therefore, allow these Appeals, set aside the orders dated

21.04.2006 and 18.10.2019 passed by the High Court and dismiss the

application preferred by Respondent No.1 under Order IX Rule 13 of the

Code. No costs.

……………………………..J. [Uday Umesh Lalit]

……………………………..J. [S. Ravindra Bhat] New Delhi;

September 29, 2021.