RAMESHWAR PRASAD Vs. DISTRICT JUDGE

JUDGEMENT

(1.) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 15-9-1995 (Annexure-15 to the writ petition) passed by the District Judge, Dehradun, in Misc. Civil Appeal No. 676 of 1985, whereby the appeal of the respondent no. 2 was allowed and the application moved under Order 9, Rule 13 C.P.C. by the defendant-respondent no.2 herein was allowed.

(2.) Briefly stated the facts giving rise to the present writ petition are that the plaintiff-petitioner Rameshwar Prasad filed a suit bearing Original Suit No. 134 of 1981 in the court of Civil Judge Dehradun for recovery of amount of Rs. 46,431/- along with interest @ 20% per annum from the date of the suit till the date of payment and in default for the sale of the property detailed in para 7A the plaint which was mortgaged at the time of taking loan of Rs. 27,000/-. In the plaint, the defendant was mentioned to be resident of Civil Lines, Jullundur City in the State of Punjab. It appears that when the defendant-respondent no.2 was not served by ordinary process of court, substituted service through publication in the newspaper was ordered. When the defendant did not turn up to put in appearance in the suit, the suit was ordered to proceed ex parte and, ultimately, the suit was decreed ex parte by judgment and decree dated 25-2-1982.

(3.) The defendant-respondent no.2 herein later-on moved an application (paper no. 3C2) on 27-10-1983, which was registered as Miscellaneous Case No. 223 of 1983 before the trial Court under Order 9, Rule 13 and Section 151 of the Code of Civil Procedure for setting aside the ex parte decree dated 25-2-1982, alleging therein that the defendant-applicant had no knowledge about the proceedings in the suit and he came to know of the decree passed ex parte in the suit only on 10-11-1983 and that too, when he received a notice from Mr. N.N.Goel, Counsel for the plaintiff. It was also alleged that the defendant was not in Jullandhar from 24-12-1981 to 15-1-1982, rather he was in Delhi, therefore, he had no knowledge of the publication of summons in the newspaper "Punjab Kesari", which is not in circulation in Delhi. It was also prayed that delay, if any, be condoned.