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1978 DIGILAW 208 (DEL)

GOODWILL INDIA LIMITED v. JAGIR SINGH

1978-12-07

SULTAN SINGH

body1978
SULTAN SINGH, J. (ORAL) ( 1 ) THIS is an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure on behalf of respondents I and 2 for setting aside the ex-parte order dated 3rd February, 1978 passed on an application under Section 20 of the Arbitration Act. The applicants respondents 1 and 2 allege that the petitioner filed three petitions under Section 20 of the Arbitration Act, (1) against the present respondent, (2) against Sardar Ajaib Singh and others and (3) against Sardar Kripal Singh and others, that Sardar Ajaib Singh informed them on 1st May, 1978 about the ex-parte order dated 3rd February, 1978, that they have not been residing at the addresses given in the petition under Section 20 of the Arbitration Act, that respondent No. 1 has been residing at his village Ram Pur, District Amritsar while respondent No. has been residing at Pheruman, District Amritsar, that no attempt was made by the petitioner to get the respondents served at their permanent addresses which were furnished by the applicants at the time when the alleged agreement was entered into for the purchase of vehicle on hire-purchase basis. The allegations contained in this application are denied by the petitioner alleging that the applications had always been in the knowledge of the present proceedings, that they have been evading service of summons and therefore the court rightly passed the order for substituted service on the application under Order 5 Rule 20 of the Code of Civil Procedure. Petition under Section 20 was filed on 17th January, 1977. On 24th January, 1977 notice was ordered to be issued to the respondents for 2nd March, 1977. It. was reported that the respondents were out of station and the summons were returned unserved. On 7th March, 1977, fresh summons were ordered to be served upon the respondents, for 7th April, 1977. The summons were issued in the ordinary manner as well as by registered A. D. post. The summons sent in the ordinary manner were returned with the remark that the respondents were avoiding service and therefore the process-server pasted the summons. The summons sent by registered A. D. post were returned with the remark that the respondents were out of station. The report of the process-server is dated 31st Mach, 1977 while the report on the registered letters is dated 30th March, 1977. The summons sent by registered A. D. post were returned with the remark that the respondents were out of station. The report of the process-server is dated 31st Mach, 1977 while the report on the registered letters is dated 30th March, 1977. The result was that the respondents were not served for 7th April, 1977. Again summons were ordered to be sent to the respondents for 18th May, 1977 but the same were also returned with the remark that the respondents were out of station. On 20th May, 1977 the petitioner filed an application under Order 5 Rule 20 of the Code of Civil Procedure for substituted service. On 19th July, 1977 the respondents were ordered to be served by publication in National Herald, for 7th September, 1977 Notice was published in the daily the national Herald dated 4th September, 1977. In these circumstances, it is claimed by the applicants that there was no proper service and that they never had any knowledge of these proceedings. ( 2 ) THE petitioners have contended (1) that the present application is barred by time, (2) that there is no provision in the Arbitration Act to set aside an order passed ex-parte under Section 20 of the Arbitration Act, and (3) that there is no sufficient cause for setting aside the ex-parte order dated 3rd February, 1978. ( 3 ) UNDER Article 123 of the Limitation Act an application to set aside ex-parte order, is to be filed within 30 days, from the date of the decree and where the summons or notice was not duly served, from the date when the applicant has knowledge of the decree. It is also provided in this Article that substituted service under order 5 rule 20 of the Code of Civil Procedure shall not be deemed to be due service. The applicants in the present case were served by substituted service on an application filed by the petitioner under Order 5 Rule 20 of the Code of Civil Procedure and therefore the applicants are not deemed to have been duly served for the purpose of Article 123 of the Limitation Act- The applicants came to know of the ex-parte order on 1st May, 1978 and filed the present application for setting aside the same on 9th May, 1978 and therefore I hold that the present application is within time. ( 4 ) IT is contended by the learned counsel for the petitioner that Order 9 Rule 13 of the Code of Civil Procedure is not applicable to the facts of the present case as the Order passed under Section 20 of the Arbitration Act is not a decree and Order 9 Rule 13 of the Code of Civil Procedure applies for setting aside a decree only. I do not agree. Under Section 41 of the Arbitration Act the provisions of the Code of Civil Procedure are applicable to all proceedings subject to the provisions of the Arbitration Act, There is no provision in the Arbitration Act excluding application of Order 9 Rule 13 of the Code of Civil Procedure to the proceedings under Arbitration Act. I, therefore, hold that Order 9 Rule 13 of the Code of Civill Procedure is applicable to set aside an order passed ex-parte under Section 20 of the Arbitration Act. Learned counsel for the petitioner has cited two judgments TLR 1975 (2) Delhi 57 (1) and 1976 DLT 291 (2) but these are not applicable to the facts of the present case. Lastly it is contended by the learned counsel for the petitioner that there is no sufficient cause for setting aside the ex-parte order dated 3rd February, 1978. It is stated on affidavits by the applicants that they never had any knowledge of the present proceedings and that they were never served and that they were not residing at the address given in the petition, and that they have been residing in their villages in Amritsar. The applicants were not duly served for 7th September, 1977 the date of hearing fixed in the case, and therefore there is sufficient cause for their non-appearance, and on 3rd February, 1978 ex-parte order under Section 20 Arbitration Act was passed. T therefore set aside the ex parte order dated 3rd February, 1978 by which petition under Section 20 of the Arbitration Act was accepted and the matter was referred to Shri Raj Pal Sagar, Advocate, Delhi. The ex parte order, however, is set aside on payment of Rs. 100. 00 as conditional cost- ( 5 ) THE preseat application has been filed only by respondents 1 and 2. The ex parte order, however, is set aside on payment of Rs. 100. 00 as conditional cost- ( 5 ) THE preseat application has been filed only by respondents 1 and 2. After setting aside the ex-parte order dated 3rd February, 1978 against respondents I and 2 the said order cannot continue against respondent No. 3 also as there may be conflicting order which may be passed after hearing respondents I and 2. I, therefore, set aside the order dated 3rd February, 1978 against the respondent No. 3 also. I. A. stands disposed of.