Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 8013 of 2018 Petitioner :- Smt. Intiyajan And 04 Others Respondent :- State Of U P And 06 Others Counsel for Petitioner :- Md. Muzzammil.I.Qureshi Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners; learned Standing Counsel for respondent no.1 and perused the record.
A perusal of the record would reveal that the petitioners had instituted Original Suit No.123 of 2008 for cancellation of the sale deed executed in favour of opposite party no.2. The said suit was decreed ex-parte on 20th March, 2013 by the court of Civil Judge (Jr. Div.), Gautam Budh Nagar. To set aside the ex-parte decree, the opposite party no.2 filed an application under Order IX Rule 13 CPC along with delay condonation application under Section 5 of the Limitation Act. In the said application it was stated that the defendant was never served with summons of the proceeding and that for the first time knowledge of ex-parte decree was received on 3rd March, 2017 when the defendant had gone to receive compensation in lieu of the land acquired for Yamuna Expressway Industrial Development Authority. It was stated that on 4th March, 2017 she engaged a lawyer to inspect the record and thereafter upon inspection of the record it was discovered that service of notice upon the defendant was held sufficient through publication dated 11th December, 2008. Claiming that she had no knowledge of the suit proceeding and that the summons were neither served nor sent to her by registered post, application under Order IX Rule 13 CPC along with application under Section 5 of the Limitation Act was filed.
The trial court by impugned order dated 29th January, 2018 allowed both the applications and set aside the ex-parte decree against which the petitioners filed civil revision no.7 of 2018, which was dismissed by District Judge, Gautam Budh Nagar vide impugned order dated 20th July, 2018.
I have perused the orders passed by the courts below. As it is not disputed that service of summons were not effected by registered post or by personal service but were stated to be effected through publication and by alleged refusal, I find no jurisdictional/legal error in the orders passed by the courts below, which may warrant exercise of power under Article 227 of the Constitution of India.
The petition is dismissed.
Order Date :- 31.10.2018. Rks.