VISHWABANDHU versus SRI KRISHNA AND ANR.

Citation: [2021] 9 S.C.R. 15 · Decided: 29-09-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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VISHWABANDHU
v.
SRI KRISHNA AND ANR.
(Civil Appeal Nos. 6094-6095 of 2021)
SEPTEMBER 29, 2021
[UDAY UMESH LALIT AND S. RAVINDRA BHAT, JJ.]
Code of Civil Procedure, 1908 – Or. IX, r.13; Or. V, r.9(5) –
Respondent no.2 filed suit for recovery against respondent no.1
alleging that he failed to refund the money received by him towards
part sale consideration for sale of property – Summons sent to
respondent no.1, received back with postal endorsement of refusal
– Eventually, suit decreed ex-parte in favour of respondent no.2 –
In execution, the property was directed to be auctioned wherein the
appellant was the highest bidder – Respondent no.1 filed application
u/Or. IX, r.13 for setting aside the ex-parte decree – Dismissed –
Appeal by respondent no.1 – Allowed by High Court – Respondent
no.2 filed application seeking recall thereof – Dismissed – Held:
Respondent no.1 was not vigilant – Auction was allowed to be
undertaken – Thus, disentitled from claiming any relief as was prayed
for – Orders passed by High Court set aside – Application filed by
respondent no.1, dismissed – General Clauses Act, 1897 – s.27.
Allowing the appeals, the Court
HELD: The summons issued by registered post was
received back with postal endorsement of refusal, as would be
clear from the order dated 19.02.1997. Sub-Rule (5) of Order V
Rule 9 of the Code states inter alia that if the defendant or his
agent had refused to take delivery of the postal article containing
the summons, the court issuing the summons shall declare that
the summons had been duly served on the defendant. The order
dated 19.02.1997 was thus completely in conformity with the legal
requirements. Even after the passing of the ex-parte decree, the
report filed by the process server on 04.04.2000 clearly indicated
that notice was served upon Respondent No.1 which was duly
acknowledged by him by putting signature on the copy of the
notice. Despite such knowledge, Respondent No.1 allowed  the
property to be put to auction in the month of December, 2000. It
[2021] 9 S.C.R. 15
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
was only after the auction was so undertaken, that he preferred
the application under Order IX Rule 13 of the Code. The High
Court, therefore, rightly observed in its order dated 21.04.2006
that Respondent No.1 was not vigilant. Yet, the High Court
proceeded to grant relief in favour of Respondent No.1. Thus,
the fact that the auction was allowed to be undertaken, Respondent
No. 1 was disentitled from claiming any relief as was prayed for.
Further, after completion of proceedings in auction, sale certificate
was also issued in favour of the Appellant. The orders dated
21.04.2006 and 18.10.2019 passed by the High Court are set
aside and the application preferred by Respondent No.1 under
Order IX Rule 13 of the Code is dismissed. [Paras 19-22][20-G-
H; 21-A, E-H; 22-A-B]
C.C. Alavi Haji v. Palapetty Muhammed and Anr. AIR
2007 SC (Supp) 1705 – relied on.
Jagdish Singh v. Natthu Singh AIR 1992 SC 1604;  State
of M.P. v. Hiralal & Ors. (1996) 7 SCC 523; V. Raja
Kumari v. P. Subbarama Naidu & Anr. (2004) 8 SCC
774 : [2004] 5 Suppl. SCR 882 – referred to.
Case Law Reference
[2004] 5 Suppl. SCR 882
referred to
Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.6094-
6095 of 2021.
From the Judgment and Order dated 21.04.2006 of the High Court
of Judicature at Allahabad in First Appeal From Order No.2473 of 2005
and order dated 18.10.2019 in Civil Misc. Recall Application No.107616
of 2009.
Gopal Sankaranarayanan, Sr. Adv., Kaushal Yadav, Nandlal Kumar
Mishra, Shafik Ahmed, Ms. Yashoda Katiyar, Dr. Ajay Kumar, Advs.
for the Appellant.
Pradeep Kumar Yadav, Vishal Thakre, Abhay Singh Yadav,
Sanjeev Malhotra, Sandiv Kalia, Satbir Singh Pillania, Ms. Reena Rao,
Nand Ram, Dr. Sushil Balwada, Advs. for the Respondents.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Delay condoned.
2. Leave granted.
3. These appeals challenge:(i) the Judgment and order dated
21.04.2006 passed by the High Court1 in FAFO (First Appeal From Order)
No.2473 of 2005; and(ii) the Order dated 18.10.2019 passed by the
High Court in CMRA (Civil Miscellaneous Recall Application) No. 107616
of 2009 preferred in said FAFO No. 2473 of 2005.
4. Respondent No.2 herein filed a Suit in the court of Civil Judge
(Junior Division), Mainpuri, Uttar Pradesh, for recovery of money along
with interest submitting inter alia  that the defendant in th
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