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Mr. D was a defendant in a suit for recovery of money. Summons sent for hearing dated 01.02.2019 to Mr.…

The application cannot succeed on the stated non-service ground because D refused the summons. Order V Rule 9(5) permits the court to treat the summons as duly served when…

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Mr. D was a defendant in a suit for recovery of money. Summons sent for hearing dated 01.02.2019 to Mr. D through registered post was received back with postal endorsement of 'refusal'. This was also the report of the process server attached with the Court. In view of this report, the Trial Court proceeded ex-parte against Mr. D on 01.02.2019. The ex-parte decree was passed in favour of the plaintiff on 01.02.2020 and the execution petition was filed. The executing court issued warrants of attachment for his bank accounts. At this juncture Mr. D filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 praying that ex-parte decree of the Trial Court be set aside on the ground that he was not duly served with the summons. Whether the said application of Mr. D can be allowed?

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Correct answer B

The application cannot succeed on the stated non-service ground because D refused the summons. Order V Rule 9(5) permits the court to treat the summons as duly served when the postal endorsement records refusal. A defendant cannot defeat service by refusing delivery, and the court need not make another attempt merely because of that refusal.

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