Arun Bhansali JUDGMENT
Arun Bhansali, J.
1. This appeal under Order XLIII, Rule 1(d) CPC has been filed by the appellants aggrieved against order dated 09.03.2016 passed by Additional District Judge, Merta, whereby, the application filed by the appellants under Order IX, Rule 13 CPC seeking setting aside of ex parte decree dated 25.01.2007 has been dismissed.
2. The respondent Company filed a suit for money against the appellants for a sum of Rs. 9,51,877/-. In the suit the summons were sent through registered post acknowledgment due to the appellants and on receipt of acknowledgment, the service was treated as complete and as no one appeared on behalf of the appellants, ex parte proceedings were initiated. Evidence of two witnesses was recorded by the trial court and whereafter the suit was decreed vide judgment and decree dated 25.01.2007 directing payment of a sum of Rs. 4,50,202/- alongwith interest @ 6% per annum from the date of filing of the suit.
3. The appellants, after the decree was transferred to the Court at Bhavnagar, Gujarat and was sought to be executed against the appellants, filed an application under Order IX, Rule 13 CPC on 14.09.2007 before the trial court. It was, inter alia, claimed that the summons sent through registered post acknowledgment due were not served on the appellants and, in absence of service of summons, the suit could not have proceeded and be decreed ex parte.
4. A reply was filed by the respondent Company opposing the prayer made by the appellants. It was submitted that the application was baseless and barred by limitation. The summons were duly served by registered post. The acknowledgment bears signatures of H.V. Shah, Director of appellant No. 1 and himself appellant No. 2 and, therefore, once the summons were duly served and appellants chose not to appear, the suit was rightly proceeded with and decreed ex parte. Even before filing of the suit notices were sent by registered post, which were also received by H.V. Shah with similar signatures.
5. After hearing the parties, the trial court came to the conclusion that the judgments cited by the appellants were not applicable to the facts of the case. The plaintiff was ordered by the Court to sent the notices by registered post acknowledgment due, the A.D. bears the same address, which is indicated in the application seeking setting aside of ex parte decree, the acknowledgment bears the cause title, number, date of hearing of the Court and the appellants have not challenged the address on the acknowledgment, the acknowledgment bears signatures of H.V. Shah, though the signatures have been disputed, however, the initials made on the documents before the Court are similar to the signatures on the acknowledgment. No affidavit has been filed in support of the challenge, the plaintiff has filed affidavit of P.K. Sharma in support of its reply, which has not been contradicted and relying on the proviso to Order IX, Rule 13 CPC, which provides that if the Court is satisfied that the defendant had notice of date of hearing and had sufficient time to appear and answer the plaintiff's claim, the Court shall not set aside the decree passed ex parte merely on the ground that there has been an irregularity in the service of summons and, consequently, dismissed the application filed by the appellants.
6. It is submitted by learned counsel for the appellants that the trial court ........