Bela M.Trivedi, J. - (1.) THE present appeal is directed against the order dated 6/9/11 passed by the Addl. District & Sessions Judge No. 2, Deeg, District Bharatpur (hereinafter referred to as 'the court below') in Civil Misc. Case No. 10/2010, whereby the court below has dismissed the application filed by the appellants under Order IX Rule 13 read with Section 151 of CPC along with the application under Section 5 of the Limitation Act. As per the case of the appellants -defendants, the respondent -plaintiff had filed the suit for recovery of Rs. 6,85,940/ - with interest, which was decreed ex -parte, on 7.11.08 by the trial court, though the appellants -defendants were not served with the summons. According to the appellants, the appellant No. 2 came to know on 29.1.10 when the respondent threatened him to get his property auctioned if he did not pay the decreetal amount. The appellants, therefore, filed an application for setting aside the said ex -parte decree under Order IX Rule 13 of CPC as also the application under Section 5 of the Limitation Act, which have been dismissed by the court below vide the impugned order.
(2.) IT has been sought to be submitted by the learned counsel Mr. Mahesh Gupta for the appellants, taking he court to the record of the trial court, that no personal summon was sought to be served on the appellants in the suit and the summon issued through the registered post was never refused by the appellants as sought to be alleged by the respondent. He also submitted that the postal endorsement on the registered A.D., regarding refusal by the appellants was forged one and, therefore the ex -parte decree was liable to be set aside, however the court be low has wrongly rejected the application of the appellants under Order IX Rule 13 of CPC. However, the learned counsel Mr. Girish Khandelwal for the respondent -plaintiff submitted that the appellants had refused to accept the summons sent through the registered post and had also failed to examine the postman to show that the endorsement made by him was forged one and, therefore, the court below has rightly dismissed the applications of the appellants. Mr. Girish Khandelwal has also relied upon the decision of the Apex Court in the case of Basant Singh & Anr. v. Roman Catholic Mission : AIR 2002 SC 3557 in support of his submissions.
(3.) HAVING regard to the submissions made by the learned counsels for the parties and the impugned order passed by the court below, as well as the record of the suit, it appears that initially the summons were sought to be served through court, however the said summon had not returned and, therefore the court below had issued summons to the appellants through registered post. According to the respondent, the appellants had refused to accept the said summons sent through registered post, as per the endorsement made on the A.D. Slip. In the opinion of the court, though a presumption under Section 27 of the General Clauses Act could be raised if the summons were sent to the defendant by the registered post at the correct address, and the same is returned with the refusal endorsement that the addressee had received the summons sent through registered post, however such presumption is rebuttable and the concerned party is required to rebut the said presumption by examining the concerned postman who had made such endorsement on the summons. Mr. Khandelwal for the respondent has rightly relied upon the decision of the Apex Court in that regard. In the instant case the appellants had failed to examine the concerned postman to rebut the said presumption and, therefore, as such the court does not find any illegality or infirmity in the impugned order passed by the court below in rejecting the application under Order IX Rule 13 CPC of the appellant. However, considering the totality of the facts and circumstances of the case and in order to give one opportunity to the appellants, the ex -parte decree is required to be set aside after imposing certain conditions. In that view of the matter, the impugned order dated 6.9.11 passed by the court below and the ex -parte decree dated 7.11.08 passed in the suit being No. 7/2004 are set aside on the condition that the appellants shall deposit Rs. one lac towards the alleged outstanding amount and the cost of Rs. 10,000/ - before the trial court within a period of four weeks from today. On such deposit being made, the respondent shall be at liberty to withdraw the same on his filing an undertaking before the court that the amount of Rs. one lac shall be refunded to the appellants with interest @ 9% per annum if ultimately the appellants succeeds in the suit. The suit be restored on filed on such deposits being made by the appellants as directed. It is clarified that if the amount is not paid by the appellants as directed, the respondent shall be at liberty to execute the decree in question. With these directions, the appeal stands allowed accordingly.;