Murari Gupta; Sohel Rishabh; Nilesh Bhardwaj; N R Varun v. Vijender @ Vicky

1. Respondent herein had filed a suit which was summary in nature.

2. The summons for appearance were issued to petitioner (defendant before the learned Trial Court) but since he did not appear despite service, an ex-parte judgment dated 01.06.2023 was passed against him.

3. Petitioner, thereafter, moved an application under Order XXXVII Rule 4 CPC, and such application has been dismissed on 24.02.2024.

4. Such order has been challenged by the petitioner/defendant by filing the present petition under Article 227 of Constitution of India.

5. The next date in the present matter is, though, 03.09.2025, the petitioner has moved an application seeking stay of the proceedings. It is submitted that the executing proceedings are underway and if stay is not granted, the present petition may become infructuous.

6. Learned counsel for respondent/plaintiff appears on advance notice and with the consent of both the parties, the matter has been taken up today itself. CM(M) 2659/2024 2

7. The grievance of the petitioner herein is, merely, to the effect that the service in question is not valid and lawful and, therefore, there was no occasion to have passed any decree against him.

8. It is also contended that there is no compliance of the mandatory provisions with respect to service of the summons, and since there is no compliance of Order V Rule 17 CPC and Order V Rule 19 CPC, the impugned order needs to be set aside and he may be given an opportunity to enter his appearance and, thereafter, the matter may be directed to be proceeded further in accordance with law.

9. During course of the arguments, learned counsel for petitioner/defendant submitted that pursuant to execution petition filed by the decree holder, his one bank account was attached and a sum of Rs. 3,13,988/lying there under was attached and such amount has already been released to decree holder i.e. respondent.

10. Learned counsel for petitioner further submits that in order to demonstrate his bona fide, he is also ready to deposit another sum of Rs. 8,00,000/- before the learned Trial Court within a period of eight weeks from today. He submits that his such voluntary deposit may not be construed as if he has made any admission with respect to the averments made in the suit. He submits that defendant would render due cooperation and assistance to the learned Trial Court so that the suit is disposed of as expeditiously as possible.

11. Learned counsel for respondent/plaintiff submits that, without prejudice to his rights and contentions, he would have no objection if the suit is converted into an ordinary suit and the amount, as undertaken by the defendant, is directed to be submitted before the learned Trial Court in shape of FDR in the name of learned Trial Court, within two months from today. He CM(M) 2659/2024 3 also submits that his such concession may also not be taken as if there is some weakness or infirmity in the case of the plaintiff. He also contends that he is giving such concession in order to ensure that there is no further delay in the matter.

12. Keeping in mind the abovesaid statements made at the Bar by learned counsel for the parties, which they have made on the basis of the specific instructions received from their respective parties, the present petition is disposed of with the following directions:i.The impugned order dated 24.02.2024 is set aside. ii.The suit in question i.e. CS DJ 252/2023 is, as stated above, converted into an ordinary suit. Since the copy of the plaint and the documents has already been received by the petitioner herein, he would file written statement within four weeks from today before the learned Trial Court. iii.The plaintiff would be at liberty to file replication, if any, within a further period of four weeks. iv.Simultaneously, as volunteered by the petitioner herein, he is directed to submit an FDR in a sum of Rs. 8,00,000/- issued by a Nationalised Bank in the name of learned Trial Court within eight weeks, with the direction that such FDR would be extended from time to time, depending upon the pendency of the abovesaid suit. v. In anticipation of such FDR being filed by the petitioner herein, the learned Trial Court would further proceed with the matter. vi.However, in case, FDR is not submitted before the learned Trial Court within the period of eight weeks from today, the impugned decree would stand revived automatically and the plaintiff/decree holder, in that situation, would be at full liberty to pursue with the execution CM(M) 2659/2024 4 petition for realisation of decretal amount in terms of decree dated 01.06.2023. vii.The principal amount, along with accrued interest, under the aforesaid FDR would be eventually disbursed by the learned Trial Court to the party found entitled to, as per the outcome of the suit. viii.The execution proceedings shall remain in abeyance for a period of eight weeks from today and in case, FDR is submitted as undertaken above, the execution petition would stand terminated and the property, lying under attachment, would stand de-attached. ix.However, a sum of Rs. 03,13,988/-, which has already been received by the decree holder, would not liable to be returned to the petitioner herein, at the moment. However, in case, the suit gets dismissed, the plaintiff would refund the abovesaid amount to the defendant as per further directions of the learned Trial Court.

13. The petition stands disposed of in aforesaid terms.

14. Pending application also stands disposed of in aforesaid terms.

15. Next date i.e. 03.09.2025 stands cancelled.