M.L.MEHTA,J. - (1.) THIS petition under Article 227 of the Constitution seeks quashing of order dated 07.04.2011 of the ADJ-03, South District, Saket District Courts, Delhi passed in the application of the petitioner under Order 9 Rule 13 CPC.
(2.) THE respondent had filed a suit of recovery against the petitioner under Order 37 CPC. In the said suit, summons were issued in the prescribed form. On receipt of report of refusal, the suit was decreed against the petitioner on 22.03.2010. The respondent filed an application under Order 9 Rule13 CPC for setting aside ex-parte decree. The said application was, however, treated as one under Order 37 Rule 4 CPC by the ADJ observing that Order 37 was a Code in itself and provisions of Order 9 Rule 13 CPC, were not applicable to suits instituted under this Order 37 CPC. From the record, the learned ADJ recorded finding of fact that the summons were issued in the prescribed form by both modes i.e. by way of ordinary as well as registered post. The summons issued by way of registered post bore correct address of the addressee (petitioner) and was returned with the report of ,,refusal on 06.02.2011, whereas the summons issued by ordinary process was refused by the petitioners wife on 11.02.2010, who had noted the date of hearing as also other particulars, but, refused to receive the same. The learned ADJ observed that the defendant was lastly served on 11.02.2010, when summons were tendered to his wife and was refused by her and the application for setting aside the ex-parte decree, having been filed on 22.04.2010, was apparently time barred. It was observed that not only that, no application for condonation of delay was filed, but even otherwise no cause much less any special circumstance for setting aside the ex-parte decree was made out by the petitioner. Consequently, the learned ADJ dismissed the said application of the petitioner and thereby maintained the ex-parte decree dated 22.03.2010.
(3.) THE impugned order is assailed disputing the tender of summons by ordinary and registered post as also the refusal by the petitioner or his wife. It was also assailed that the learned ADJ has erred in not recording any finding as regard to his pleas taken in the application under Order 9 Rule 13 CPC and has dismissed the application only on the ground of barred by limitation.;