- (1.) This civil misc. appeal under Order 43 Rule 1 (d) of CPC is directed against the order dated 04.07.2011 passed by learned Additional District & Sessions Judge, Barmer in Civil Misc. 54/2010 whereby the learned trial court has rejected the application under Order 9 Rule 13 CPC r/w Section 151 CPC filed by the defendantappellant.
(2.) Learned counsel for the appellant, Mr. Vinay Jain urged that summons were not properly served upon the defendantappellant and, therefore, the money decree passed against the defendant in summary trial under Section 37 of CPC is not justified; and the learned trial court has erred in rejecting application under Order 9 Rule 13 CPC.
(3.) On the other hand, Mr. Hemant Shrimali, learned counsel appearing on behalf of respondent submits that advance was made for the purpose of business of the petitioner-defendant, who owns a petrol pump and a A Class Contractor. He also submitted that in the summary trial, the decree has rightly been passed since despite service of the summons upon the appellantdefendant, he did not appear before the learned trial court and lead his evidence, therefore, the exparte decree is justified.;