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Shankar Lal Vs. Gulab Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All163
AppellantShankar Lal
RespondentGulab Chand and ors.
Excerpt:
procedure code (1908), order v, rules 1 and 2; order ix, rule 13 - ex parte decree--appearance of defendant in answer to a preliminary application not equivalent to appearance in answer to the plaint. - .....the suit. the suit was against the appellant and his minor brother har bilas as owners of the firm gulab chand har bilas. har bilas was a minor, and when the plaint was filed there was an application by the plaintiff asking the court to appoint gulab chand as guardian of the minor. notice of this application was issued to gulab chand. on the 27th of july, 1911, he filed a vakalatnama and objected to his appointment as guardian of the minor. his objection was allowed, and finally on the 1st of september, one musammat champa was appointed guardian. on the same day the suit was registered and summons was ordered to issue. summons was issued to gulab chand, but it was returned unserved. therefore the court passed an order that as there was a vakalatnama on the record it was unnecessary to.....
Judgment:

Tudball and Muhammad Rafiq, JJ.

1. The appellant in this case was the defendant in a suit, in the court below, which was decreed ex parte against him. He applied under Order IX, Rule 13, of the Code of Civil Procedure to have the ex parte decree set aside on the ground that summons had not been served on him and therefore he was unable to appear and defend the suit. The suit was against the appellant and his minor brother Har Bilas as owners of the firm Gulab Chand Har Bilas. Har Bilas was a minor, and when the plaint was filed there was an application by the plaintiff asking the court to appoint Gulab Chand as guardian of the minor. Notice of this application was issued to Gulab Chand. On the 27th of July, 1911, he filed a vakalatnama and objected to his appointment as guardian of the minor. His objection was allowed, and finally on the 1st of September, one Musammat Champa was appointed guardian. On the same day the suit was registered and summons was ordered to issue. Summons was issued to Gulab Chand, but it was returned unserved. Therefore the court passed an order that as there was a vakalatnama on the record it was unnecessary to take any further step. The suit was decided ex parte against Gulab Chand. His application was rejected by the court below on the ground that a vakalatnama, dated the 27th of July, 1911, had been filed and showed that a vakil was appointed to defend the action filed and therefore service of summons was, unnecessary after that. It is quite clear that on the 27th of July, 1911, the only matter pending was the miscellaneous matter relating to the appointment of a guardian. The suit was not registered and the pleader was appointed for that miscellaneous matter. It was the duty of the court to serve the summons after the suit had been registered. It is true that Gulab Chand knew that a suit had been instituted, but he was entitled to receive a copy of the plaint and be informed of the date fixed in order that he might be able to protect his rights. Therefore the order of the court below is wrong. We allow the appeal; set aside the ex parte decree as against the present appellant, and direct the court below to restore the suit to its original number and proceed to hear and determine it according to law. The costs of this appeal will abide the event.


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