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| Appeal against order, dismissing the application for setting aside ex-parte judgment and decree |
In the name of ALLAH, the most beneficent, the most
merciful
IN THE COURT OF DISTRICT JUDGE
____________D/O ____________R/O______________________
….Appellant
VERSUS
__________S/O __________R/O ________________
….Respondent
APPEAL
U/O 43 READ WITH SECTION 151 OF CPC AGAINST ORDER
Appellant respectfully submits as under:
A.
Through instant appeal, petitioner
wants to challenge order dated
1.
That a mandatory notice for
filing of above captioned appeal has been sent to the counsel for the
respondent. Copy of notice alongwith receipt is enclosed as annexure “A”.
2.
That on
3.
That on
4.
That on
5.
That on
6.
That notices were issued to
the appellant which were received on
7.
That on
8.
That on
9.
That application of the
appellant was dismissed by the learned trial court vide impugned order.
10. That
impugned is illegal, against the law, arbitrary and void ab-anitio, therefore, it
is liable to be set aside inter-alaia on the following grounds:-
i.
That it was submitted by the counsel
for the appellant before the learned trial court that summons were sent to the
appellants against the provisions of order 5 of CPC as in all summons issued by
the learned trial court, process server did not mention any witness of the vicinity
of the appellant and due to said reason no summon was received to the appellant.
It is settled principal of law that summons should be received in compliance of
order 5 of CPC, whereas, no summon was sent to the appellate inclusion with process
server. In view of above, impugned order is not sustainable in the eyes of law;
therefore, it is liable to be set aside.
ii.
That substituted service
could not be ordered if summons were not received by the appellant. In fact no
summon was sent to the appellant and ex-parte judgment and decree was obtained on
the back of the appellant. It is settled principal of law that after affixation a copy of summon on the
conspicuous place of the residence of the appellant, no substituted service could
be ordered. In the case of appellant, no copy of summon was affixed on the
conspicuous place of the residence of the appellant. In view of above, impugned
order has been passed against the principal of natural justice, therefore, it
is liable to be set aside.
iii.
That publication was ordered
in the newspaper which has a very limited circulation and due to said reason , appellant
remained unaware from the institution of
suit of the respondent. On the other hand, it is well settled
principal of law that cases of the
litigants should be decided on merit giving full opportunity to the parties and
technicalities should be avoided,
whereas, appellant was not given any opportunity to defend her case on merit, therefore,
impugned order is not sustainable and liable to be set-aside.
iv.
That no summon was received
to the appellant and case of the appellant fell in the second part of article 164
of limitation act, therefore, application of the appellant was within time but
learned trial court did not appreciate said aspect of the case. In fact, no
summon was sent to the appellant deliberately in order to obtain ex-parte
judgment and decree and execution petition was filed after lapse of limitation
of 30 days so that appellant might be deprived of her defense, therefore
impugned order is liable to be set aside.
v.
That impugned order is based
on surmises and conjectures.
vi.
That impugned order is result
of non reading and misreading of the record available on the file.
PRAYER:
Under the circumstances as stated above,
it is respectfully prayed that instant appeal may kindly be accepted and impugned
order dated 05-01-2010 may kindly be set aside by accepting application for
setting aside ex-parte judgment and decree of the appellant so that case may be
adjudicated on merit in the interest of justice.
Any other relief which this honourable
court deems fit and property may kindly be awarded to the appellant in the interest
of justice.
Appellant
Through
Advocates
High Court
CERTIFICATE
Certified that this is the first appeal
on the subject mater and nothing is pending before the superior courts.
Counsel
IN THE
COURT OF DISTRICT JUDGE
_________
VERSUS
_________
APPEAL U/O 43 READ WITH SECTION 151 OF CPC AGAINST ORDER
APPLICATION FOR SUSPENSION OF
EXECUTION PROCEEDINGS
Applicant/ appellant
respectfully submits as under:
1.
That applicant has filed above
captioned appeal before this honourable court. Contents of appeal may kindly be
treated as an integral part of the instant application.
2.
That the applicant has a good
prima-facie case and hopes to succeed in it. Balance of convenience lies in his
favour. If proceedings of execution are not suspended / stayed , appellant
shall suffer an irreparable loss.
PRAYER;
Under the circumstances as stated above,
it is respectfully prayed that instant application may kindly be accepted and execution
proceedings for ex-parte judgment and
decree dated
Applicant
Through
Counsel
IN THE
COURT OF DISTRICT JUDGE
_________ VERSUS
_________
APPEAL U/O 43 READ WITH SECTION 151 OF CPC AGAINST ORDER
APPLICATION
FOR SUSPENSION OF EXECUTION PROCEEDINGS
AFFIDAVIT
I, ______________do hereby solemnly
affirm and declare as under:
That the contents of the accompanying
application are true and correct to the best of my knowledge and belief and
nothing has been concealed there from.
Deponent
Verified on oath at
Deponent