Full Text
HIGH COURT OF DELHI
Date of Decision: 02nd September, 2025
SH. RAMBIR .....Appellant
Through: Mr. Suresh Chandra S. and Mr. Anil Kumar Jangra, Advocates.
Through: None.
JUDGMENT
1. Appellant suffered an ex parte decree.
2. He moved an application under Order IX Rule 13 CPC read with Section 151 CPC seeking to set aside such ex parte judgment and decree dated 10.02.2015.
3. His such application has been dismissed by the learned Trial Court on 15.05.2025.
4. Such order has been challenged by virtue of present appeal.
5. This Court has gone through the impugned order which not only records its reasons about appellant not approaching the Court at the earliest available opportunity but also takes note of the specific service reports and then comes to conclusion that the defendant was duly served with the summons and that there was no reason to disbelieve specific reports of the concerned postman and the process server, who were public servants. FAO 243/2025 2
6. The suit in question was though filed under summary procedure but it was converted into an ordinary suit vide order dated 11.10.2013 and summons were issued to the defendants. On the basis of refusal report and the fact that no written statement had been filed by the defendant, the defendant was proceeded against ex parte on 20.12.2013 and, thereafter, on the basis of the evidence led by the plaintiff, there is a decree of Rs.5,52,000/- with cost and interest, in favour of the plaintiff.
7. Such decree is dated 10.02.2015.
8. The defendant, however, filed an application under Order IX Rule 13 CPC as late as in April, 2024. In his such application, he contended that he learnt about the ex parte judgment only when he had received summons from fast-track Court Muzaffarnagar, Uttar Pradesh in relation to the Execution Petition in question.
9. Since the defendant was not having any assets within jurisdiction of Delhi, the execution seems to have been transferred to Muzaffarnagar.
10. The other contention of the defendant/judgment debtor was to the effect that there was never any attempt to serve him at his residential address and there was no occasion for him to have received any process at his shop as he had already vacated the same and was not available at his shop on the given dates i.e. 16.11.2013 and 18.11.2013.
11. Obviously, the abovesaid application has been filed after nine years of passing of the ex parte judgment and the learned Trial Court took note of the fact that though, according to judgment debtor, he learnt about the ex parte judgment when he received summons from the Executing Court situated at Muzaffarnagar, U.P., he never bothered to mention as to on which such date, he learnt about the ex parte judgment. FAO 243/2025 3
12. It also noticed that the certified copies of the Execution Proceedings pending before the Muzaffarnagar Court were placed on record which rather indicated that vakalatnama by his counsel had been filed way back on 28.11.2022 and despite that, the abovesaid application seeking to set aside ex parte decree was filed as late as on 22.04.2024.
13. Thus, apparently the delay was not explained in any manner whatsoever.
14. As far as the service upon the defendant is concerned, the learned Trial Court noticed that the summons were duly served by observing as under:-
FAO 243/2025 4 mentioned the date when he had vacated the shop in question nor produced any document pertaining to vacation of the said shop. In the absence of any material on record to that effect and failure on his part even to mention the specific month and year in which he had vacated the shop in question, there is no reason to disbelieve the report of the postman and the process server who are the public servant.”
15. As noticed, the judgment debtor does not dispute that it was his shop’s address. He has, merely, verbally asserted that he had left the abovesaid shop prior to the abovesaid alleged date of service but no documentary proof with respect to his such assertion was placed on record.
16. The onus in this regard cannot be said to be discharged, merely, by way of oral assertion and, therefore, this Court does not find any reason to interfere with the impugned order which seems to have been passed after appreciating the facts in the most judicious manner.
17. The appeal is, accordingly, dismissed in limine.
18. The pending applications also stand disposed of in aforesaid terms.
JUDGE SEPTEMBER 2, 2025/ss/shs