M/S NAHAR ENTERPRISES versus M/S HYDERABAD ALLWYN LTD. AND ANR.

Citation: [2007] 2 S.C.R. 413 · Decided: 09-02-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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MIS NAHAR ENTERPRISES 
A 
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v. 
MIS HYDERABAD ALL WYN LTD. AND ANR. 
FEBRUARY 9, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Code of Civil Procedure, 1908: 
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Or. 5,r.2-Service of summons on defendant-When a summons is sent c 
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to defendant to appear in court and to file a written statement, it is obligatory 
on Court to send along with it a copy of plaint and other documents 
appended thereto. 
Or. 9, r.6(J)(c)-Summons not served in due time-Held, in such a case 
Court would direct plaintiff to take steps for fresh summons. 
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Or. 9, r.13-Application for setting aside ex-parte decree-Limitation-
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Held, summons having not been duly served in terms of Or. 5, r.2 or provisions 
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of Or.9, r.6(J)(c) having not been complied with, second part of Article 123 
of Schedule to Limitation Act would be attracted and limitation will begin 
to run from date of knowledge of ex-parte decree-Ex-pa rte decree set aside- E 
Defendant would deposit the specified amount before trial court-Limitation 
Act, 1963-Schedule-Art. 123. 
Respondent filed a suit for recovery of money against the appellant. 
Summons for appearance on 10.10.1988 was sent to appellant which was 
served on him on 14.10.1988 without enclosing a copy of the plaint Meanwhile F 
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the Court adjourned the case for 2.12.1988. Without issuing any further 
summons the Court fixed another date for ex-parte hearing and the suit was 
ultimately decreed ex-parte on 13.12.1988. The appellant was served with 
summons in execution case on 2.12.1991 whereupon he filed an application 
on 13.12.1991 for setting the ex-parte decree, which was dismissed on the G 
grounds that (1) non-receipt of copy of the plaint and other documents 
alongwith the summons could not be a ground to set aside ex-parte decree; 
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(2) since there was no report about service of summons on 10.10.1988, there 
was no necessity to serve fresh summons; and (3) the ex-parte decree having 
413 
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414 
SUPREME COURT REPORTS [2007) 2 S.C.R. 
A been passed on 13.12.1988, the application for setting aside the same filed on 
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13.12.1991 was barred by limitation. The appeal of the defendant having been 
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dismissed by the High Court, he filed the present appeal. 
Allowing the appeal, the Court 
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HELD: 1.1. When a summons is sent calling upon a defendant to appear 
in the Court and file his written statement, it is obligatory on the part of the 
Court to send a copy of the plaint and other documents appended thereto, in 
terms of Order V, Rule 2 CPC. (Para 8] (416-B) 
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1.2. The trial Court, furthermore, committed a manifest error in so far 
c as it failed to take into consideration that the summons having been served 
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upon the appellant after the date fixed for his appearance, it was obligatory on 
its part to fix another date for his appearance and filing written statement 
and direct the plaintiff to take steps for service of fresh summons, as envisaged 
by Order IX Rule 6(1)(c) ofCPC. (Para 9) (416-D-E) 
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1.3. Thus, the summons having not been duly served upon the appellant 
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inasmuch as tl:e provisions of Order V Rule 2 CPC or provisions of Order 
oj. 
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IX Rule 6(1)(c) having not been complied with, the second part of Article 123 
of the Limitation Act will be attracted and the date of knowledge of passing of 
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the said ex-parte decree would be the date from which the limitation will begin 
E to run. The ex-parte decree dated 13.12.1988 is set aside. However, in view of 
Order IX, Rule 13 CPC the defendant-appellant shall deposit a sum of 
Rs.15,000/- before the trial Court. (Paras 11,12 and 14] 
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(416-H; 417-A-B; 418-B] 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 714 of2007. 
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From the Judgment and Order dated 28.6.2004 of the High Court of 
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Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 1253/1996. 
Prakash Shrivastava for the Appellant. . 
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The Judgment of the Court was delivered by 
S.B. SINHA. J. 1. Leave granted. 
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2. Heard the learned counsel for the parties. 
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3. The appellant is before us aggrieved by and dissatisfied with the 
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NAHAR ENTERPRISES v. HYDERABAD ALL WYN LTD. [S.B. SINHA, J.] 415 
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judgment and order dated 28.6.2004 passed by a learned Single Judge of the A 
High Court of Andhra Pradesh at Hyderabad dismissing the appeal preferred 
against an order dated 19. 7.1996 passed by Addi. Civil Judge Hyderabad in 
l.A. No. 6/1992. 
4. The respondent herein filed a suit for recovery o

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