Ex Parte Decree -- Setting Aside -- Refusal of Notice -- Examination of process server mandatory before proceeding ex parte
(i) Civil Procedure Code, 1908, O.9 R.13 -- Ex Parte Decree -- Setting Aside -- Refusal of Notice -- Where an ex parte decree is passed on the basis of refusal of notice by the defendant, the trial court is duty bound to examine the process server before proceeding further -- Proof of valid service of summons is an essential condition before proceeding ex parte -- It is incumbent upon the trial court to examine the process server as well as witnesses to the refused notice or summons on oath before passing an ex parte decree. (ii) Civil Procedure Code, 1908, O.5 Rr.17 and 19 -- Service of Summons -- Refusal to Accept -- Examination of Process Serving Officer -- Where the process server's report indicates that the respondent refused to accept the summons, the court is duty bound to examine the process serving officer, particularly where his report is not on affidavit -- Even where such report is submitted on affidavit, the court retains discretion to examine the process serving officer to satisfy itself as to the correctness of the report and to hold service as valid.
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