IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3140 OF 2009 (Arising out of S.L.P. (C) No.11468 of 2007)

Kare      ...Appellant(s)

Versus

Brajendra     ...Respondent(s)

O  R  D  E  R

Leave granted.

Heard learned counsel for the appellant. In spite of service of notice, nobody has entered appearance on behalf of  

the respondent to contest the prayer made in this appeal. The respondent filed an application under the Rajasthan Debt Recovery  

Act for recovery of Rs.15,000/- from the appellant.  In the application, the respondent  gave  the  appellant’s  address  at  village  Abar,  tehsil  Kumher,  District  Bharatpur  

(Rajasthan).  Notice was issued to the appellant at the address given in the application  but the same was not served, apparently because the appellant was residing in the  

locality  called  Shantinagar  of  village  Dhara,  tehsil  Kumher,  District  Bharatpur  (Rajasthan).  On 26.8.2005, the Debt Recovery Court (Civil Judge) ordered ex-parte  

proceedings  against  the  appellant  and  finally  passed  decree  dated  16.12.1985  in  favour of the respondent for a sum of Rs.16,687.80 payable by the appellant in by-

annual installments  of  Rs.1,500/- each.   On coming to know of the ..../2-

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ex-parte  decree,  the  appellant  filed  an  application  for  setting  aside  the  same  by  asserting that he was residing at Shantinagar, village Dhara, for last 10 years and he  

had not been served with the notice of the application filed by the respondent.  By an  order  dated  26.5.1994,  Civil  Judge,  Bharatpur  dismissed  the  application.   Appeal  

preferred  by  the  appellant  was  dismissed  by  Additional  District  Judge  No.1,  Bharatpur vide his order dated 24.2.1999 and the High Court upheld that order by  

observing that the dismissal of the appellant’s application for setting aside ex-parte  decree does not suffer from any illegality.

A perusal  of  the  record  shows that  in  the  application  filed  by  him for  setting aside the ex-parte order and decree, the appellant had categorically averred  

that  the  address  given  by  the  respondent  was  not  correct  and  the  trial  Court  committed an error by presuming that  the notice had been duly served upon the  

appellant.   The  factum  of  mentioning  of  wrong  address  was  reiterated  by  the  appellant  in  the  memos  of  appeal  and  revision  filed  against  the  rejection  of  the  

application filed by him for setting aside the ex-parte decree.  In the memo of petition  for special leave to appeal also, the appellant has stated that the address given in the  

application filed by the respondent was not correct.  This has not been controverted  by the respondent. Therefore, it must be held that the trial Court, lower appellate  

Court and High Court committed serious error by refusing to set aside the ex-parte  decree passed against the appellant.

....3/-

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Accordingly, the appeal is allowed, impugned orders and ex-parte decree  are set aside and the application filed by the respondent is restored to the file of Debt  

Recovery Court (Civil Judge) for fresh decision.  

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, May 01, 2009.