Full Judgment
J.K. Mehra, J.
1. I have heard the parties at length on this application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte decree. The only ground raised in the application is that there was no proper service on the defendant. From the record, I find that summons were duly delivered at the address of the defendant and same were received by one Ms. Mukta Rani, who according to process server's report represented herself as wife of the defendant. But the name of the defendant's wife is stated to be Smt. Kaushalya and not Smt. Mukta Rani.
2. The award was published in the presence of the parties on 20.8.1988. The award was duly filed in this court and notices were issued. The claimant accepted notice in this court through his counsel. The respondent was served in the manner stated above. The case was adjourned on various dates for arguments on the question as to whether service upon Ms. Mukta Rani was sufficient. In the circumstances, and finally, after feeling fully satisfied about the proper service, the award was made a rule of the court on 12.1.1990. It is pointed out in the reply that after the award was made a rule of the court, notice were sent by the DH by regd. AD post as well as under certificate of postal service. The envelope sent under regd. AD were returned with the postal authority's remarks that 'Bar Bar Jane Par Nahin Milte, Vapis Jayen.' This report was endorsed after five successful attempts were made by sending the notices under regd. A.D. post to the JD. A copy of same notice was also sent at the address of by JD in ordinary post under Certificate of Posting and the JD must have received the same.
3. The DH apparently is not conversant with the correct name of the wife's of JD and the JD has taken up the objection that the name of his wife is different from the name of the lady who had accepted the notice. Mr. Saini says that the signatures on the notice by one Mukta Rani are also not in the hand writing of respondents wife. However, there is absolutely no Explanationn as to why no action was taken by the JD on receipt of the intimation of the decree having been passed by this court and he awaited until the notice of execution reached him and he filed the present application. In spite of all this, I find that the DH has not established the fact that the service has been properly effected. Even the order dated 12.1.1990 appears to have been passed taken the service to have been effected on the wife of the JD. No information is forthcoming on the record about Ms. Mukta Rani. In the light of this, I am inclined to accept that technically there was no proper service on the JD in the suit. But the facts that by keeping out of the way of proper service the JD has successfully delayed the execution of the decree by a considerable length of time. But for delay, the opposite party can be compensated with costs. I consider it to be proper and in the interest of justice to give an opportunity the JD/defendant to defend the suit. Accordingly, I allow the application and set aside the ex parte decree subject to payment of Rs. 5,000/- as costs. The costs being conditional.
4. List the matter for further proceedings on 7.12.1993.