Vikramajit Sen, J - (1.) This is an application filed on behalf of the Plaintiff under Order XXXVII Rule 3(3) & (7) read with Section 151 Civil Procedure Code and Section 5 of the Limitation Act. The applicant has prayed for the condonation of the delay in entering appearance and for being permitted to participate in the proceedings under Order XXXVII of the Civil Procedure Code.
(2.) It is necessary to mention some facts of the case. Attempts to serve the Defendants were made from after several attempts, an application was filed on behalf of the Plaintiff under Order V Rule 20 of the Code of Civil Procedure and on 24.2.1999 the Joint Registrar ordered that the Defendant be served with summons in the prescribed from under Order XXXVII of the Code of Civil Procedure by publication in the Statement as well as by effixation at their last known address and at the Notice Board of the Court returnable for 5.7.1999. On a report received from the Registry, that service has been affected, as contemplated by the orders of the Joint Registrar, the case was placed before the Court on July 15,1999. As there was no appearance on behalf of the Defendant, I had heard arguments on the suit and reserved orders on 15.7.1999. while the case was at this stage, an application, I.A. 7127/99 was Filed by the Defendant, which, at the threshold, appeared not to be maintainable in view of the decision of the Supreme Court in Arjun Singh Vs. Mohindra Kumar, AIR 1964 SC 993. On 6.8.1999, learned counsel for the Defendant withdrew the application. The case was, therefore, restored to the stage at which it was prior to the moving of this application viz. to await the passing of orders. On a perusal of the matter, however, I had some doubt on the maintainability of the suit .under the summary Procedure, and for this reason had listed it on 17.8.1999. It was at that stage that the present application was filed. Learned counsel for the applicant/Defendant had submitted that since the case was now no reserved for orders/judgment, the application did not fall within the prescription contained in Arjun Singh's case (supra) and was therefore maintainable. This is how this application has come us for hearing.
(3.) Learned counsel for the Defendant/Applicant has reaffirmed and reiterated the contents thereof in the course of arguments. It has firstly been explained that Mr. M.S. Vinaik, Advocate had been contesting a winding up petition on behalf of the Defendant in the course of which he had come to learn of the pendency of the present proceedings. He had conveyed this information to the wife of Shri I.D. Kansal, Director of the Defendant's company who, on arrival in Delhi on 25.7.1999 filed the application which was subsequently withdrawn. It is then stated that in view of section 442 of the Companies Act, due to the prior pendency of the winding up petition, the present suit is liable to be stayed. In the course of the hearing on 1.9.1999, counsel for the Defendant learnt for the first time that the suit was under Order XXXVII of the Civil Procedure Code and thereupon the present application was filed, it has been averred that the Defendant has not been served in accordance with law; that the Plaintiffs did not attempt to serve the Defendants through registered A.D. post at all at the known addresses The averment of the illegality of the method service is that the Plaintiff was aware of the Defence Colour address of the Defendant but made no attempt to serve him there. Interesting, as is borne out from the service report, the only effort to serve the Defendants was at the address where they were either no found, or the premises were found locked. It is further submitted that in order to comply with the provisions of the law, if service by publication was to be effective, it was not sufficient to public only the summons but also the plaint and documents filed alongwith it.;