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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23" DAY OF OCTOBER
BEFORE
THE HON'B£.E MRJUSTICE 3AwAO--»RARH'IE§4ij .
M1Sc.cvL. NO.18::'-'l62»'/'iUjj,A'N[i'4,A'*--V ' A A
c.R.R NO. 29R9/2010 * '
BETWEEN:
H.B.BOREGOWDA, _
AGED ABOUT 66 YEARS,
S/O K.BOREGQWD_A,
RESIDING AT 1iE1v4J,T.2--'--"F? M
4" MAIN ROAD, -- A
VI3AYNA{5AR, " 1 A »
BANGALORE' -- 53,602: O40 S ' V.
'V .. PETITIONER
(By ADV., FOR
M/'S..D.F_iAR'MASi*!.R'EE ASSOCIATES, ADV.,)
AND: _ _
1. \lEF'\Ol'K.ATESVFV!_AAN--,,O'
_;j' '' MAJOR'; .
gs/O..T.§.ATE V;'------MAHALINGAM
A J _ 'v;E:'ARjH,ARAN,
"M.AJ,OR.','v~""
A S/O KATESHAN
~ BOTH THE RESPONDENTS ARE
‘RESIOING AT THE OUTHOUSE,
4TH CROSS, MALLESHWARAM,
BANGALORE — 560 003
RESPONDENTS
. ‘2. i_-ie.ardn.’
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MISC. CVL. IS FILED U/S 151, CPC, PRAYING TO STAY
THE OPERATION AND EXECUTION OF THE ORDEP;–.,_DATED
24.08.2010 PASSED BY THE XXX ADDL. CITY CI.VIL443l_VJDGE
AT BANGALORE IN MISC.NO.678/2008.
CRP IS FILED U/S 115, cpc, i=ILEDr’r4.AGA.I,i\iSTie»TriE._
ORDER DATED 24.8.2010 PASSED IN MIS*C.678/O8 ON THE
FILE OF xxx ADDLCITY cI:vIL~1tiD_GE.,. fr3’ANoA.i_Oi2E, T
ALLOWING THE PETITION FILED U/QLIX, E.uLE*I3_, w..;cr»c,
SEEKING TO SET ASIDE THE ORDER DATED.2:3.’1._1′..2.VOO6
PASSED IN O.s. 661/O3. I I. ‘ 2 _ v
This appiication along the pet’it.iorI coming on for
admission this day, tl*i’e__court”‘i*Ii’a_ci*e the following’
A I ;0__
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This the order dated
24.8.201O”ViII_”~–!\{i’i’stI’.._ “67.a1,iIoa._ if;y’i’~rrhich the ex parte decree
is set aside. The petition
is po:st.ed«0.f0r: Along with the petition, Misc.
Cv|A.1_846x2)’-w1Q’ isIf.i.|ed’v.se’e0i<ing stay.
Coritextiial facts needing reference are:
re)' Petitioner herein filed O.S.661/03 seeking recovery
I '*0if..4Rs.Ii,10,0O0/– from the respondents herein on the basis
they had borrowed the amount as ioan in the second
I I ""Cweei< of October 2001 and for valuabie consideration, had
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executed an on–demand promissory note and consideration
receipt. The amount was actually paid on 10._,1..{§_:;’2:O=i31 as
evidenced by the negotiable instrument
Dlaint.
b) It was alleged that ldAemaind~:”t«hei.__ L
petitioner to pay the amount _resp4onAd’e.nts fa,’i.i”ed.,v”coiiseqiivileiity
to which repeated requests made,_Vbuti.’inVéV.y:a’iVnV.it In the
suit, summons were ‘§:;4;’.igj1ered.”‘”tV’c’,’ ‘vi.I+;i§,aEde.fendantsuwhich were
returned with postal The learned
trial judge notliriiwyrég the eiwdorseimientgheid service of notice
as si:iifficlien.f:iVi,andlfpplaced’ the\_Wd’ef’vendants ex parte. In the
subsetguentVexvlpartel’proceedings, the evidence tendered by
the._petiti’on_er._’,was_ received which was ocular and
do._c°tmji-entapry. “”””‘i”iioticing that ocular testimony was
documents, the suit was decreed on
‘~ The decree was put into execution before the same
.court in which coercive process was issued. When the
‘process was to be executed against them, they issued two
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cheques dated 31.7.2008 for Rs.50,000/- each” to the
Ameen (process server) who had gone to e_\’ve_ct.i_te.Vthe
warrant.
d) The cheques on presentation were**d.–i.sh.on’o:ured
in that regard separate proceedSangs;haiuezbe-en= §’I”l’il’.’::.l”.’:.i’_t€?-2″?’-v”:if3′}7 ‘
the petitioner to prosecuteithe res”p.ondents»”fQA;-.the
punishable under Section Negotialble instruments
e) The respondents an application
under M–isc.678/O8 seeking to
set dated 23.11.2006 on the
Qroundlitttét they: received’ summons in the suit
anoj§tha.t hadV”sufficierit cause to show their absence on the
‘date their appearance.
A V’f’)”A”‘_i7hespetition met with serious resistance from the
pe.t’itio”ner”herein who, in unequivocal terms, described the
“ave.rmVents as a falsity, lacking bona fides. Both parties led
‘7e’\’/lidjence. The contention of the petitioner that they were
it “served with summons was on the basis that the postal cover
(
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was tendered which they declined to receive and therefore,
the postal authorities had to return as
“unclaimed”. Therefore, presumption
envisaged under Section 27 ofjthe Genei’ail,’_~Cl’a:uses.t_:ACt
accrues to their benefit and convtientioens to»._th.e”‘coiit’i=ary;_are
to be rejected.
4. The learned trial 3’udg,e:cQn_s’i~d_,ered’ nds urged
by both sides with on record and
records of pro:ce_edings””i-nit: is elaborate
disczussion-~o’n_ a1js,_oects_’ canvassed, but it boils down to the
fo|lo\,vi’nClV:” — fl , if
I) – W-heth_i’e.r’~.._there was sufficient service of
*surnm’cns–,ojn the defendants and if so, was
there; sufficient cause shown by them to set
a’s~id,e the decree dated 23.11.2006?
_1I) -.4v”Whether the court was right in directing return
» ” o_f”_the cheques collected through court ameen to
the respondents-defendants?
5. *~_”R’:egarding the first ground, learned trial judge has
,noticed there was discrepancy in the address of the
‘Erespondents. While in the postal cover, the address was
“no.31/1, 2″” floor, 4″‘ Cross, Malieswaram,” the actual
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address was “No.31, 1” fioor, 4″‘ Cross, Maileswaram
(outhouse). Therefore, he opined that there was..dif.fer_ence
in the description of the address which shoui_d¥V_:fa’c’cru’e__te.__.t’ne
benefit of the respondents–defendant_s;’~..’/’::E’2e’s’édes,
substantiai finding of the triai court isatiiata.3urnrnnnjwas,a_not
served. There was no eviden’c.e. tolsholw
was “tendered” and V__responVd4_e’nt:s -.were”no_ti.fiedf% to receive
the cover. In the aVb’s:encpe’é–.of{_n’otir:e.:to.»p receive the postal
cover, the endorsement’:l?u’ncl’ai«rne’d””_ ‘factually incorrect
and on held summons
was filed beiatediy was
entertainedtV’V””.V–~..
6. ___The'”~p_etitic~ne’r.-plaintiff has seriously assaiied the
ju:d€gnient~,. Lea’i”‘i”ied counsei with vehemence, would
i the learned trial judge has misunderstood the
‘intent Va.n’dE__purpose of Rule 13 of Order IX, C.P.C. He would
conte.n__d that the provision is not available unless it is shown
there was no service of summons. Besides, the
it ___5applicant must establish by acceptable evidence that he was
prevented by sufficient cause from appearing before court.
at
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According to him, in the instant case, the evidence tendered
did not speil out any sufficient cause, much less any cause
to explain the absence of the respondents.
7. Regarding service of notice, I have airea-dy;.a__d’verited
to the contention that mere tendering of..n,o’tice ernoughu
In this regard, learned counsel V
General Ciauses Act to show _onceA’p.|_aintiff had ttiendeifeid
cover with requisite fee menitioruing the.c”orrect:,address of
the respondents, serxgiee w.’as:.tAg’- .i3v’e,Vvié~ffected in the normal
course. Return of s,u,c’ii.._co’ve:r as”‘éjn..c*iaimed” or being
absen’t’ris’e3:’f,t’o :’afp’i’esu.m’ptvion in law that it was due
service, Takivngvif~t’he.._::’ii;.en-efit of the said provision, he
conVtends,””~theV_triai=_ court has seriously erred in not
dist’i’ng;uEshing between the words “received” and ”service”.
“I_a”m :u’n:ai34i’eA.,.tO;.accept these contentions because Section 27
iunyjddoubtedifiyilgives rise to the presumption of service of
notic’e_tendered in the normal course and through registered
vp_osi:. But the presumption is always rebuttabie and to raise
__:i:he presumption certain circumstances must exist. The
court has to be vigiiant.
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8. There are two circumstances in which postal covers
are normally returned, despite address being4.co»rr_ec_t: i)
addressee was “absent” and ii) “unc|aime’d””.~.’x~’….,,.1’f2-___t’he
endorsement is “absent”, the presumptio’n~—-.coul’d: be well,
founded. But if it is “unclaimed”, it–_is-.’in-cum’b_ent on ‘
the person who seeks hienefit Vllofpxthye
establish that there was notic’e,,:o;’.,,_such” registeyired post to
the addressee and Vdeispite it,ch-eflfailed to claim. The
burden, undoubtedly,v,l.~iioul:cl be who proposes
due servicéei-_.:V _,pase’,’uti’ie petitioner. In the
a bse “reg a rd i n g reg iste red cover
was giv.e’n.’.to presumption could be raised. In
this_view”‘”oF_:th.§}_matte’i;,” as there is no other material to
Show sthat.notice/imimation of registered cover was given to
1 (respondents) by the postman, the
“unclaimed” should be taken as not proved.
Once” not so, undoubtedly summons cannot be taken as
been duly served. Presumption in this fact situation,
will not be available to be raised against the respondents.
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9. Under Rule 13 of Order IX, C.P.C., two circumstances
are enumerated: the court passing ex parte_,vd_ecre.e as
envisaged under Rule 6 is vested with the di-s_:«c.r’etiVt;j’;f;.
aside the ex parte decree when applied _.for’,’
was not duly served or that pirevfented:”t>y’i*I1.any .
sufficient cause from appea_rin,g before thev’,:co.urt…when%
suit was called. Once it was not
served, then the first”‘~part, come into play
and consequently of hearing
cannot be other words, once it
is shown served, the consequence
wouldibe ‘applicant was not aware of the
date of ‘heariVng’; of summons itself has to be
congstlrued as suifficient cause to set aside the ex parte
. ‘d«ecree.V..T.he,trial court, in the instant case, has done this
H ~.\/ery It has ascertained about due service and
being “convinced there was no due service, held against the
‘rp=et_i.tioVner. The finding is on facts. This is a revision under
i’s~s”ection 115, C.P.C. calling for no re–appraEsa| of facts, but
if “only to test the legality of the impugned order.
fi:\,D«/
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10. In order to examine whether the discretion has been
exercised judiciously, I have referred to facts d4i.scussed in
the foregoing paragraphs. I am satisfied
no interference.
11. The second ground urged w,h.i,|teiv.ex
parte decree dated 23.11.2005, thteatriai red.
to bind the respondents iiefeurenceilgis made to
Order IX Rule 13, :p.o,sht;uia,,tes that ‘the court
shall make an order s_ as against him
upon such, into court or
-and shall appoint a day for
proceedlrvgwlth Laying emphasis on the words
‘uppnv such ‘terms as to costs and payment into court’,
.’ :i’eaVrneSd,c–o:u’nse| submits the direction issued by the trial
.,c§.;i,rt VVfi1;i1Ar’fe»::ti’n’g”V.the parties to return two cheques in a sum of
given by the respondents during execution of
2 “CF’l5,’_ exwparte decree, is illegal and does not conform to Rule
This contention must fail for the reason when ex parte
it “decree has been set aside. The parties have to be restored
atzy,
ii
to their originai position. Gain could be had to Section 144,
C.P.C. which reads thus:
Sec.i44: APPLICATION FOR RESTITUTIQN’:5–.’.,’_~:i.’..[:
(1) Where and in so far as a de_c~ree.f0,r’an. _
order is varied or reversed”-in any_..a_pp’eai,-[L “A
revision or other proceedings oris? set ‘a_si’de’or-.,_
modified in any suit instituted for the ‘p.ur’D.05e”,,_'”~
the court which passed theVd_e’cree ;o’rj;order_§
shaii, on the application ‘of any ipar–i:y’*en’titIed
to any benefit by wave of restitution} or
otherwise, causesuchi”r’estitu’t-ion to be made
as wiii, so far fmay be,.p’:~a_c.e”‘the parties in
the position which_i_’they.1’wou_id».have occupied
but for such de.cree. or order ‘such part
thereofas–has;be,enV;varied.,_ inciueding orders
for the re,Fu’n,d .o’f.cb,_s’ts and for”t’|’i’e payment of
interes”t_,..,G-a’rnage,«–._con*i’pe’rjsa_t’ion and mesne
profits,’:.._w’,hich ‘a.re”‘-Iizroperiyg. consequentiai on
«such_’¥’ariait;ions,.,”–rever’sai,” setting aside or
mod_ifi<;atio_n"«of 't.he-decree of order.'
Ex'pi_anati"on:"" purposes of subsection
._(1), "the «e_5<.'Dre»ssiOn "court which passed the
decree 'or_,orderf" shall be deemed to include,-
' _'*(._a) Where the decree or order has
"been'q_v'aried or reversed in exercise of
. "app-.eIia_te"or revisional jurisdiction, the court of
fi_rsti~"i._ns'tance;
V (b) where the decree or order has been
set aside by a separate suit, the court of first
instance which passed such decree or order;
(c) where the court of first instance has
ceased to exist or has ceased to have
jurisdiction to execute it, the court which, if
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the suit wherein the decree or order was
passed were instituted at the time of making’–.,
the application for restitution under
section, would have jurisdiction to try….su.ch*J;
suit. ‘
(2) No suit shall be institutedfor t.§’1’e”pu7rpo’s.e”.,
of obtaining any restitution “or. o.ther.,_rei_ie_f”” .
which could be obtained by appli-cation.
subsection (1). 3 * ‘
Thus from provision Section”t«s.,.i£44, it s’een when a
decree is set aside,.an.nulledWo’r~:iyayried, thecoiurt shall, on
the appiication of any party benefit by way of
restitution or’ot.herwise,;causeéisuchféfstitution to be made.
It leaves no the parties have to be put
to their origiiinal*p_,o’sition'”as they were before the said decree
was passed; vA’ny_ pursuance of the decree which
isyiater set “aside, annulled or modified must be undone.
ifhe word-s,vA:’ap__pearing in Section 144, C.P.C. for refund of
~.cb.-st ‘ihpvayment of interest, damages or
comp’ensaition by way of mesne profits gives wide
“power”to the court which has varied or annulled the decree
“pass the order directing refund of the amount if it is a
money decree and to restore possession if it is a decree
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reiating to possession, and similar decrees. But Ruie 13 of
Order IX refers oniy to cost. In the instant case,_iss’u.aince of
two cheques by the respondents to the pet.E–t?_i’onAe’~r.j’ythrouTgih
Ameen is on 31.8.2008 when coercive process.was’.Viss.ued.y
against them. That warrant undAoutg’ted’iyé’ivva’sin ‘puirsuabnce
of the decree which is tsetrasiividiegj…,_HSViace
decree is set–aside, the chequVeAs:_issued..by_tVhe_r?espondents
were iiabie to be returnedtoitthhe”=d’ete’nd’ants. Even if they
had made payment the»; jurisdiction to
pass the of the matter, the
clirectiono3’.th’e1’V«1tria_’i the cheques received by
the the ambit of Section 144,
C.P.C. be beyond the jurisdiction of
the§:cou.rt.
anxiety expressed by iearned Counsei is piaced
triai has to be expedited.
13″;~ is submitted that the petitioner has ied
V nevidence, the respondent shalt cross–examine them on the
date on which the suit wilt be posted and if there is any
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additional evidence from the p|aintiff–petitioner, then within
ten days thereafter. With these observations, th_e’~.petiiit~i.Qn is
disposed of. Miscncvl. 18462/10 stands reje_ctedi.f .
vgh*