Shirish Pawar’s Post

SETTING ASIDE EX-PARTE DECREE IN APPEAL   The appellant prefer the appeal mainly on the ground that address mentioned in the cause title of the suit was incorrect and, he was residing at another address. Therefore, the suit summons was not duly served upon the appellant.   The respondent contended that, it is not open for the appellant to challenge the decree of the trial court on the ground that summons was not duly served. He has not filed an application for setting aside the decree. That there is a concurrent finding of the trial court and High Court that the first respondent has established his title and ownership over the suit property and that the building constructed thereon is completely illegal.   Record of Trial Court showing that attempt to serve summons by regular mode failed as premises of defendant/ appellant were found to be locked. Trial Court did not direct affixing of copy of summons on outer door of premises as required by R.17 of O.5 CPC. Without verifying the address of appellant, summons was ordered to be served through Registered Post AD. Therefore, there was no warrant for proceeding ex parte against appellant. Another reason to accept the prayer for remand is multistoreyed building was constructed on the suit property and ex party demolition decree would adversely affect the occupants. Therefore ex parte order set aside and suit remanded.   G.N.R. Babu, C.A.no.6228/2022, Supreme Court #property #building #law #legal #legaladvice #lawyer #litigation #corporatelaw

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