Supreme Court rules that a defendant who refuses to answer a summons is not entitled to seek the setting aside of an ex-parte decree


The defendant in this case had refused to accept the summons issued in the action. Execution procedures were begun after the action was decreed ex parte. The defendant officially confirmed receipt of the auction notice pertaining to the suit property. He preferred the application under Order IX Rule 13 of the Code only after the auction was completed.

Despite the fact that the trial court denied the motion, the High Court granted it on appeal. Though the High Court noted that the defendant was not as diligent as he could have been, it added that his “behaviour does not entitle to castigate him as an irresponsible litigant on the whole.”

The plaintiff appealed to the Supreme Court after the High Court reinstated the action. A bench of Justices Uday Umesh Lalit and S Ravindra Bhat noted in the Supreme Court that Sub-Rule (5) of Order V Rule 9 of the Code states, inter alia, that if the defendant or his agent refuses to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons was duly served on the defendant.


The bench further pointed to Section 27 of the General Clauses Act, 1897, which provides for a presumption that service of notice has occurred when it is given to the right address by registered mail. It noticed that the choice of the Supreme Court in C.C. Alavi Haji versus Palapetty Muhammed and Anr AIR 2007 SC (Supp) 1705 has held that when a notification is sent by enrolled post and is gotten back with a postal underwriting “rejected” or “not accessible in the house” or “house locked” or “shop shut” or “recipient not instation”, due assistance must be assumed.


The Court consequently held that the litigant was not careful. The Court put away the High Court’s judgment which permitted the application under Order IX Rule 13 of the CPC.

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