Interim Order 17

Order Details: COPY OF ORDER
Pdf Text: 34 Misc SCJ 31/24
JOGINDER KAUR Vs. KAMAL KUMAR
CNR No.DLNT030003412024
14.10.2026
Present: Ms. Shivani, Ld. Counsel for the applicant.
Shri Sudesh Kumar, Ld. Counsel for the non
applicant.
Applicant in person.
Matter is listed for orders on application filed by the
defendant under Order IX Rule 13 read with Section 151 of the
Code of Civil Procedure.
Vide separate order of even date, the application
stands allowed. The ex-parte judgment and decree dated
04.12.2019 passed in the main suit are hereby set aside.
Ahlmad is directed to restore the suit to its original
number. Present application accordingly disposed off.
. Defendant is at liberty to file WS within 30 days
from today. Ahlmad is directed to tag present application with
the main file.
Put up for further proceedings on 19.12.2026.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/14.10.2026
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34 Misc SCJ 31/24
JOGINDER KAUR Vs. KAMAL KUMAR
CNR No.DLNT030003412024
14.10.2026
ORDER
1. Vide this order, the Court shall dispose of the application
filed by the defendant under Order IX Rule 13 read with Section
151 of the Code of Civil Procedure, 1908 (hereinafter, “CPC”),
seeking setting aside of the ex parte judgment and decree dated
04.12.2019, along with the accompanying application seeking
condonation of delay.
2. The applicant/defendant has sought setting aside of the ex
parte judgment and decree on the ground that the summons in the
main suit were never served upon him and that the plaintiff had
deliberately furnished an incorrect address in the memo of
parties, thereby preventing service of summons upon the
defendant and enabling the plaintiff to obtain an ex parte decree.
3. It is the case of the applicant/defendant that, in the memo
of parties of the main suit, his address was mentioned as House
No. 460, Ground Floor, A Block, Nehru Vihar, Delhi. The
defendant contends that he never resided at the aforesaid address
and that his address was, in fact, House No. 4, Indra Vihar, near
Mukherji Nagar, Delhi, which is also the suit property in respect
of which the plaintiff had instituted the suit seeking a decree of
mandatory injunction directing the defendant to vacate the
premises.
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4. The defendant further submits that he came to know about
the ex parte judgment and decree only when notice in the
execution petition was served upon him on 10.02.2024. It is
stated that the address of the defendant/judgment debtor
mentioned in the execution petition was the address of the suit
property itself, namely, House No. 4, Indra Vihar, near Mukherji
Nagar, Delhi. The application under Order IX Rule 13 CPC was
thereafter filed on 28.02.2024.
5. In reply to the application, the plaintiff has contended that,
at the time of institution of the main suit, the portion of the suit
property in the possession of the defendant was lying locked and,
therefore, the address of the suit property was not mentioned as
the address of the defendant in the memo of parties. It is further
contended that the defendant is owner of the property bearing no.
H. No. 460, ground floor, A block, Nehru Vihar, Delhi and at the
time of filing of the suit, defendant was residing therein. The
plaintiff has further asserted that, at the time of filing of the
execution petition, the defendant was residing at the suit property
and, therefore, the address of the suit property was mentioned as
the address of the defendant/judgment debtor in the execution
proceedings.
6. I have heard the submissions made on behalf of the parties
and have perused the record.
7. Before examining the merits of the application, it is
necessary to consider whether the application under Order IX
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Rule 13 CPC has been filed within the prescribed period of
limitation.
8. The ex parte judgment and decree in the present case were
passed on 04.12.2019. The defendant asserts that he acquired
knowledge of the decree upon service of the notice in the
execution proceedings on 10.02.2024. The record further reflects
that the application under Order IX Rule 13 CPC bears the filing
stamp of the administrative filing section dated 28.02.2024.
9. Article 123 of the Limitation Act, 1963 prescribes a period
of 30 days for an application to set aside an ex parte decree.
Where the summons or notice was not duly served, the period of
limitation runs from the date on which the applicant acquired
knowledge of the decree. The Explanation to Article 123 further
provides that, for the purposes of the said Article, substituted
service under Order V Rule 20 CPC shall not be deemed to be
due service.
10. In the present case, the defendant claims to have acquired
knowledge of the decree on 10.02.2024, and the application was
filed on 28.02.2024, i.e., within 18 days of the asserted date of
knowledge. In the absence of any material establishing an earlier
date of knowledge, the application is within the prescribed period
of limitation.
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11. Consequently, the application seeking condonation of
delay does not require separate consideration and the said
application shall, accordingly, be disposed of as unnecessary.
12. The principal question requiring consideration is whether
the summons in the main suit were duly served upon the
defendant in accordance with law, or whether the defendant has
established sufficient grounds for setting aside the ex parte
decree under Order IX Rule 13 CPC.
13. The record reflects that the summons issued to the
defendant at the address mentioned in the memo of parties were
returned with the report that no such person resided at the said
address. Thereafter, the plaintiff moved an application under
Order V Rule 20 CPC seeking substituted service, which was
allowed. Publication was effected in the newspaper The
Statesman on 21.05.2016, and the defendant was subsequently
proceeded against ex parte.
14. There is admittedly a discrepancy between the address
mentioned in the memo of parties of the main suit and the
address subsequently furnished in the execution petition. The
address mentioned in the memo of parties was House No. 4, 60,
Ground Floor, A Block, Nehru Vihar, Delhi, whereas the address
mentioned in the execution petition is House No. 4, Indra Vihar,
near Mukherji Nagar, Delhi, being the suit property itself.
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15. The defendant has specifically denied residing at the
address mentioned in memo pf parties. The plaintiff, on the other
hand, has explained that the suit property was lying locked at the
time of institution of the suit and that, for this reason, the said
address was not mentioned as the defendant’s address in the
memo of parties.
16. The explanation furnished by the plaintiff does not
satisfactorily address the material discrepancy. Significantly, the
suit itself was instituted seeking a decree of mandatory injunction
directing the defendant to vacate the very property bearing No. 4,
Indra Vihar, near Mukherji Nagar, Delhi. In these circumstances,
the omission to mention the address of the suit property as the
defendant’s address in the memo of parties assumes significance
and calls for a satisfactory explanation. No particulars have been
furnished to explain why the address of the suit property was not
mentioned for the purpose of service of summons,
notwithstanding that the suit was directed against the defendant
in respect of his possession of the said property.
17. The discrepancy becomes more significant when
considered in light of the address mentioned in the execution
petition. In the execution proceedings, the plaintiff has mentioned
the address of the suit property itself as the address of the
defendant/judgment debtor. The plaintiff has expressly asserted
that, at the time of filing of the execution petition, the defendant
was residing at the suit property and that, therefore, the said
address was furnished in the execution petition.
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18. However, even while taking the aforesaid stand, the
plaintiff has failed to disclose when the defendant allegedly
started residing at the suit property or, if the plaintiff’s case is
that the defendant was not residing there at the time of institution
of the suit, when the defendant had left the property. The plaintiff
has not furnished any particulars explaining the alleged change in
the defendant’s place of residence between the institution of the
suit and the filing of the execution petition.
19. The plaintiff’s explanation, therefore, leaves an important
factual gap. On the one hand, the plaintiff contends that the suit
property was locked at the time of institution of the suit and that
the address of the suit property was consequently not mentioned
in the memo of parties. On the other hand, the plaintiff has
subsequently furnished the address of the very same property as
the address of the defendant/judgment debtor in the execution
proceedings, asserting that the defendant was residing there at
that time. The plaintiff has not explained the intervening
circumstances or furnished any particulars regarding when the
defendant allegedly began residing at or ceased residing at the
suit property.
20. Thus, the defendant’s contention that he was residing at the
suit property, coupled with the subsequent furnishing of that very
address in the execution proceedings and the absence of a
satisfactory explanation from the plaintiff regarding the
discrepancy, lends support to the defendant’s case that the
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summons issued in the main suit did not effectively bring the
proceedings to his notice.
21. Having considered the circumstances cumulatively, the
Court finds that the defendant has established that the summons
in the main suit were not duly served upon him in the
circumstances of the case.
22. Accordingly, the application under Order IX Rule 13 CPC
deserves to be allowed and the ex parte judgment and decree
dated 04.12.2019 are liable to be set aside.
23. In view of the foregoing discussion, the application filed
by the defendant under Order IX Rule 13 read with Section 151
CPC is hereby allowed.
24. The ex parte judgment and decree dated 04.12.2019 passed
in the main suit are hereby set aside. Ahlmad is directed to
restore the suit to its original number. Present application
accordingly disposed off.
25. Defendant is at liberty to file WS within 30 days from
today
26. Ahlmad is directed to tag present application with the main
file.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/14.10.2026
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