C.R.No.380 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.380 of 2011 Date of decision: 1.4.2011 Gurcharan Singh and others ….Petitioners Vs. Bank of India, Banur ….Respondent CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Harish Goyal, Advocate for the petitioners. Jaswant Singh, J Petitioners, who claim themselves to be legal heirs of original defendant No.3 Gurdev Singh (since deceased), have filed the instant revision petition under Article 227 of the Constitution challenging the impugned order dated 28.1.2008 (P.1) passed by the learned Civil Judge (Sr. Division), Rajpura whereby their application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 3.9.1991 was dismissed and the judgment dated 5.5.2010 (P.2) passed by the learned District Judge, Patiala affirming the order dated 28.1.2008. Brief facts are that the plaintiff-respondent Bank filed a civil suit No.768 dated 16.12.1988 for recovery of Rs.1,87,894/- against three defendants and the petitioners are legal heirs of defendant No.3 Gurdev Singh. The said suit was decreed ex parte vide judgment and decree dated 3.9.1991 passed by the learned Sub Judge, Ist Class, Rajpura. On 24.2.1997, an application under Order 9 Rule 13 CPC was filed by said C.R.No.380 of 2011 #2# Gurdev Singh for setting aside the aforesaid ex parte judgment and decree. Upon notice, the application was opposed by the plaintiff/respondent-Bank inter alia on the ground that JD-applicant was already in the knowledge of the judgment and decree dated 3.9.1991 and he intentionally did not appear in the Court despite service at the relevant time and the present application is time barred and the same is filed just to delay the execution proceedings. After hearing both the sides and recording the statements of the parties, learned trial Court dismissed the application vide order dated 28.1.2008 and appeal against the same was dismissed by the learned District Judge, Patiala vide judgment dated 5.5.2010, hence the present petition. Learned counsel for the petitioners argues that Gurdev Singh was allegedly only a guarantor of defendant No.1-Karnail Singh and no due service of suit was effected upon him. It is further argued that said Gurdev Singh came to know about the ex parte judgment and decree dated 3.9.1991 only on 13.2.1997 when a Bank Officer visited his village and asked about the amount in question. After hearing learned counsel for the petitioners and perusing the paper book, this court does not find any merit in the present petition and the same deserves dismissal. It would be relevant to mention here that the summons in civil suit sent to defendant No.3 Gurdev Singh were received back with the report that he was not residing in the village, therefore, substituted service of defendant No.3-Gurdev Singh by way of publication was issued in the newspaper “The Tribune” dated 23.10.1989 for 6.12.1989. A perusal of order dated 6.12.1989 (P.3) reveals that defendant No.3-Gurdev Singh was not present despite service through publication in the newspaper “The C.R.No.380 of 2011 #3# Tribune” and, therefore, he was ordered to be proceeded against ex parte by learned Sub Judge Ist Class, Rajpura. It transpires that during the pendency of the execution proceedings a Bank official had visited the house of said Gurdev Singh on 13.2.1997 regarding the decretal amount and at this stage an application under Order 9 Rule 13 CPC was filed by said Gurdev Singh after a period of more than five and half years. Learned trial Court framed the following issues while deciding the application: “i) Whether ex parte judgment and decree dated 3.9.1991 is liable to be set aside?OPA ii) Relief.” Said Gurdev Singh appeared as AW1 and reiterated the submission made in the application. On the other hand, respondent-Bank examined H.K. Vasdeva, Manager as RW1 and deposed that the applicant was duly served but he did not appear despite his service through publication in the newspaper and consequently he was proceeded against ex parte. He further deposed that the application stood as a guarantor for the loanee Karnail Singh-defendant No.1 and executed the relevant documents. Learned trial Court after perusal of the record has found that the summons were received back with the report that Gurdev Singh is not residing in the village Ramnagar whereas in the application under Order 9 Rule 13 CPC, the same very address is mentioned by the applicant-JD and, therefore, the learned trial Court has rightly come to the conclusion that either he informed the process server wrongly or procured the report for the reasons best known to him. The Bank money is a public money. The loan was taken by defendant No.1 Karnail Singh and defendant No.3 Gurdev Singh stood as a guarantor. When the liability of loan was not discharged, then the civil suit No.768 of 16.12.1988 was filed by the Bank against the C.R.No.380 of 2011 #4# defendants including the said Karnail Singh (loanee) and Gurdev Singh (guarantor). None of the defendants has seriously opposed the claim of the Bank in the trial Court and ultimately, the civil suit was decreed ex parte vide judgment and decree dated 3.9.1991. A period of almost 20 years has elapsed but till date, the decree is not satisfied due to the delaying tactics of judgment debtors. Both the courts below have rightly come to the conclusion that defendant No.3 Gurdev Singh was duly served but he intentionally did not appear and there is no sufficient ground to set aside the ex parte judgment and decree dated 3.9.1991, which involve the recovery of public money. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned orders passed by both the courts below warranting interference under Article 227 of the Constitution. Dismissed. April 01, 2011 ( JASWANT SINGH ) manoj JUDGE