Kare Vs. Brajendra
 INSC 928 (1 May 2009)
JURISDICTION CIVIL APPEAL NO.3140 OF 2009 (Arising out of S.L.P. (C) No.11468
of 2007) Kare ...Appellant(s) Versus Brajendra ...Respondent(s) O R D E R Leave
Heard learned counsel
for the appellant.
In spite of service
of notice, nobody has entered appearance on behalf of the respondent to contest
the prayer made in this appeal.
The respondent filed
an application under the Rajasthan Debt Recovery Act for recovery of
Rs.15,000/- from the appellant. In the application, the respondent gave the
appellant's address at village Abar, tehsil Kumher, District Bharatpur
(Rajasthan). Notice was issued to the appellant at the address given in the
application but the same was not served, apparently because the appellant was
residing in the locality called Shantinagar of village Dhara, tehsil Kumher,
District Bharatpur (Rajasthan). On 26.8.2005, the Debt Recovery Court (Civil
Judge) ordered ex-parte proceedings against the appellant and finally passed
decree dated 16.12.1985 in favour of the respondent for a sum of Rs.16,687.80
payable by the appellant in by- annual installments of Rs.1,500/- each. On
coming to know of the ..../2- -2- ex-parte decree, the appellant filed an
application for setting aside the same by asserting that he was residing at
Shantinagar, village Dhara, for last 10 years and he had not been served with
the notice of the application filed by the respondent. By an order dated
26.5.1994, Civil Judge, Bharatpur dismissed the application. Appeal preferred
by the appellant was dismissed by Additional District Judge No.1, Bharatpur
vide his order dated 24.2.1999 and the High Court upheld that order by
observing that the dismissal of the appellant's application for setting aside
ex-parte decree does not suffer from any illegality.
A perusal of the
record shows that in the application filed by him for setting aside the
ex-parte order and decree, the appellant had categorically averred that the
address given by the respondent was not correct and the trial Court committed
an error by presuming that the notice had been duly served upon the appellant.
The factum of mentioning of wrong address was reiterated by the appellant in
the memos of appeal and revision filed against the rejection of the application
filed by him for setting aside the ex-parte decree. In the memo of petition for
special leave to appeal also, the appellant has stated that the address given
in the application filed by the respondent was not correct. This has not been
controverted by the respondent. Therefore, it must be held that the trial
Court, lower appellate Court and High Court committed serious error by refusing
to set aside the ex-parte decree passed against the appellant.
appeal is allowed, impugned orders and ex-parte decree are set aside and the
application filed by the respondent is restored to the file of Debt Recovery
Court (Civil Judge) for fresh decision.
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