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Judgment
Exparte decree was passed by District Judge, Rajouri on 15.6.2002. An application for setting aside the same was filed by the present appellant
before the trial court. The ground urged in the application was that he was not served in consonance with the provisions of Order 5 of the Code of
Civil Procedure. Categorical stand taken by the appellant was that no notice was ever received by him. The learned trial court after hearing the
parties has dismissed the application vide order dated 16.01.2004. Feeling aggrieved of the said order, the present appeal has been preferred.
I have heard learned counsel for the appellant and perused the record.
Reiterating the plea of the appellant that no notice was served on him, as a result of which exparte decree has been passed against him, learned
counsel for the appellant contended that the order was required to be set aside. It seems that decree was passed by the learned District Judge,
Rajouri against the defendants on 15.6.2002. An appeal was preferred against this order before this court. In the said appeal appellant was a
party. He was set exparte by this court and the said appeal was dismissed.
In order to seek setting aside of the proceedings, recourse to Order 9 Rule 13 of the C.P.C. is to be taken. Explanation to Order 9 Rule 13
requires that if a judgment/decree sought to be set aside has been disposed of by the appellate court on any ground, except if the appeal has been
withdrawn, no application shall lie for setting aside the exparte decree.
In view of this provision, application of the appellant for setting aside exparte decree cannot be entertained. The learned trial court while examining
the contention of the appellant regarding non service has stated that registered A/D covers vide postal receipt No. 4249 dated 30.1.1997 were
sent to the present appellant. Notice was not received back served or unserved, as such, presumption of his service was drawn after expiry of 30
days. The appellant has not shown anything to rebut this presumption.
For the reasons stated hereinabove, I find no force in this appeal, the same is dismissed alongwith connected CMP(s) if any.