SHIV KUMAR SHARMA,J. - (1.) INSTANT Misc. Appeal impugns the order dt. 26.2.1992 of the learned Additional District Judge No. 1 Kota, whereby the application of the appellant submitted u/O. 9, R. 13 r/w. Sec. 151 CPC, and Secs. 14 and 5 of the Limitation Act was dismissed.
(2.) THE plaintiff respondent (for short the plaintiff) instituted suit for the recovery of Rs. 42,799.19 against the defendant appellant (for short the defendant). Summons sent through registered post was received by the defendant on 19.5.1988 whereas the next date in the trial Court was 21.5.1988. The defendant did not appear and sent telegram seeking adjournment. Learned trial Court, however, passed ex parte order on 16.7.1988 and thereafter passed ex parte decree on 10.8.89. In the execution proceedings of the said decree the goods of the defendant were attached at Bombay. The defendant raised objections to the attachment of the goods on the ground that the defendant was not properly served and the Court at Kota had no jurisdiction to entertain the suit. The civil Court at Bombay where the execution case was transferred, vacated the attachment order subject to the defendant depositing Rs. 50,000/-. Finally learned Civil Judge Bombay on 19.1.1991 rejected the objections raised by the defendant. An appeal thereafter was preferred by the defendant before the High Court at Bombay and the same was dismissed by the High Court on 4.2.1991. In the meantime the defendant moved an application for setting aside ex parte decree before the trial Court on 31.1.1991 u/O. 9, R. 13 r/w. Secs. 14 and 5 of the Limitation Act, which was dismissed as mentioned hereinabove.
(3.) MR . Sagar Mal Mehta, learned Sr. Advocate strenuously contended that the defendant was vigilantly pursuing the matter before the Court at Bombay and delay in filing the application ought to have been condoned u/Ss. 5 and 14 of the Limitation Act. The summons was served upon the defendant on 19.5.1988 for putting appearance before the trial Court on 21.5.1988 in the morning at 7 a.m. and it was not humanly possible for the defendant to reach Kota in such a short time therefore telegram was sent by him. Under these circumstances, the trial Court ought to have sent another summons u/O. 9, R. 6(3) CPC. The Court having failed to do so could not have passed ex parte decree. The summons at the outset ought to have been served through process of the Court and thereafter alternative mode of serving by registered post could have been adopted. Having failed to do so the Court flouted the legal provisions and summons served on 19.5.1988 on the defendant cannot be said legal service in the eye of law.;