In Vishwabandhu vs Sri Krishna and another, 2021, the apex court held that if the defendant refused to accept the summon and the court declared that the summons is duly served. The ex parte decree passed in such a case would not be allowed to be set aside under Order IX Rule 13 of the code of civil procedure.

In this case, the summon served on the defendant which he refused to accept. After that, the court passed the exparte decree in the suit in the favour of the plaintiff. When the auction takes place according to the decree passed by the court then the defendant acknowledges the notice of auction of the property in suit. Then the defendant filed an application under Order IX Rule 13 of the code of civil procedure.

Though the application of the defendant was rejected by the trial court, the same was allowed by the high court in appeal. The High court observed that the conduct of the defendant was not watchful but the whole is not sufficient to rebuke him as a litigant.

The high court order for the cost against the defendant for the inconvenience caused by the defendant to the plaintiff as compensation.

Aggrieved by the decision of the high court, the plaintiff filed an appeal before the Supreme Court. The bench comprising of Justice Lalit and Justice S Ravindra Bhat heard this appeal.

The apex court observed that Order V Rule 9 Sub-rule 5 of code of civil procedure says that when the defendant refused to accept the postal article containing the summons then the court shall declare that the summons is duly served on the defendant.

They further observed section 27 of the General Clauses Act, 1897 which give a rise to presume that service of summoning duly served when sent to the correct address by registered post.

When the summon refused to be accepted by reasons like a closed shop, the person not available, refused, locked house, etc. it presumed that summons are duly served.

The apex court held that decision of the high court is liable to be set aside. As the law care of those who are vigilant of their right, not of those who are sleepy.

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