i.4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 201/2007 SHRI PARAS RAM Si ORS. Appellant Through Mr. Surinder Jain, Advocate versus IMARTI DEVI Si ORS. Respondent Through Ms. Geetanjali Mohan, Advocate CORAM: HON'BLE MS. JUSTICE ARUNA SURESH ORDER % 11.08.2009 f V, CM No. 10712/2007 (delay in refilling) For the reasons stated in the application, the same is allowed. Application stands disposed of. RSA 201/2007 & CM No. 10711/2007 (stay) Appellant (hereinafter called plaintiff) had filed a suit for possession against the respondent (hereinafter called defendant) which was decreed ex-parte on 25.11.1995. During the course of execution of the decree, the defendant filed an % application under Order 9 Rule 13 CPC for setting aside the ex- parte decree. The said application was duly contested by the counsel for the plaintiff. The civil judge dismissed the application RSA 201/2007 Page 1 of 3 Signing Date:24.07.2024 17:12:49 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified / c vide his detailed order dated 12.9.2006. Aggrieved by the said order of dismissal, the defendant filed an appeal before the learned ADJ. The said appeal was allowed vide order dated 11.4.2007 and the order of the trial court was set aside. The appellate court also set aside the ex-parte judgment dated 25.11.1995 and directed the trial court to give opportunity to the defendant to contest the suit as if there was no ex-parte order and make efforts for expeditious ^ "^^isposalpreferablywithin ayear. The parties were accordingly directed to appear before the trial court on 20.4.2007. Aggrieved by the said order of the first appellate court, the second appeal I has been filed by the plaintiff. The impugned judgment of the first appellate court is based on the evidence of the parties adduced on the record and the facts and circumstances of the case. Service of a process ^ upon the opposite party has to be to the satisfaction of the court ^ and if the court is of the view that proper service has not been effected upon the opposite party, court is within its rights to hold that the service was not proper and fresh summons were RSA 201/2007 Page 2 of 3 required to be served upon the defendant. The appellate court after assessing the evidence on the record found itself in disagreement with the observations of the trial court while concluding that no proper service was effected upon the defendant and therefore defendants who came to know of the decree at the time of execution of the same have every right to contest the suit. While appreciating the evidence of the parties adduced on the record the first appellate court concluded that it was satisfied that there was no occasion for the defendants to refuse to accept the process and suffer an ex-parte decree. Even the questions as formulated by the appellant/plaintiff do not raise any substantial questions of law and are all questions of fact. In the second appeal Court is not to give any fact finding after appreciating the evidence of the parties,placed on the record. Hence, I find no merits in the appeal. The same is lilk accordinglydismissed. ARUNA SURESH, J. AUGUST 11, 2009 jk RSA 201/2007 Page 3 of 3