Jammu & Kashmir High Court
Tariq Hussain Shah vs Updesh Kumar on 30 January, 2025
Sr. No. 43
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: CM(M) No. 27/2025
CM No. 329/2025
Tariq Hussain Shah ..... Petitioner(s)
Through :- Mr. Aadil Manzoor Beigh, Advocate
Vs
Updesh Kumar .....Respondent(s)
Through :-
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
30.01.2025
01. Through the medium of the instant petition, the petitioner has called in
question the attachment order dated 01.08.2024 followed by impugned order
dated 07.01.2025, i.e. the proclamation issued under Order XXI Rule 66 and
subsequent proceedings arising out of the execution petition pending
adjudication before the learned trial Court.
02. Learned counsel for the petitioner has vehemently argued that the
petitioner has not been served as per the procedural mandate, as envisaged
under Sub Rule 1 Rule 3 of Order XXXVII of Civil Procedure Code, which
mandates that the plaintiff shall together with summons under Rule 2 of Order
XXXVII serve on the defendant, a copy of the plaint and annexures thereto.
For facility of reference Order XXXVII Rule 3 Sub Rule 1 is reproduced as
under:-
“[3. Procedure for the appearance of defendant-(1) ln a suit to
which this order applies, the plaintiff shall, together with the
summons under rule 2, serve on the defendant a copy of the
2|Page CM(M) No. 27/2025plaint and annexures thereto and the defendant may, at any
time within ten days of such service, enter an appearance
either in person or by pleader and, in either case, he shall file
in Court an address for service of notices on him.”
03. It is the specific case of the petitioner that he has not been served as per
the mandate of the aforesaid rule, which expressly and explicitly lays down
that the summons issued under the aforesaid rule shall accompany the plaint as
well as annexures, which in the instant case has not been done. Thus, the
decree passed by the learned trial Court in utter non-compliance of the
aforesaid rule is not sustainable in the eyes of law and deserve to be set aside.
04. Learned counsel for the petitioner further submits that the decree could
have been passed only in the eventuality if the applicant could have been
served properly as per the procedural mandate and the decree passed in utter
violation of the procedural infirmity deserve to be set aside. He further submits
that the condonation of delay application together with the application filed by
the petitioner have also not been considered in terms of Order XXXVII Rule 4,
which mandates that the Court may under special circumstances set aside the
decree, stay or set aside the execution and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems reasonable to the
Court to do so and on such terms as the Court deems fit.
05. Learned counsel for the petitioner further submits that since the service
was not in accordance with law, the learned trial Court ought to have condoned
the delay and allowed the application of the petitioner and set aside the decree
and thus, the deficient service constitute special circumstance in light of the
3|Page CM(M) No. 27/2025
law laid down by Delhi High Court in case titled Shri Hans Raj Vs. Shri
Lakhi Ram AIR 2005 Delhi 87 and also in light of the catena of the other
judgments which have been relied upon by the petitioner.
06. Thus, according to the learned counsel for the petitioner, the dismissal of
the application for condonation by the trial Court because the petitioner has
failed to explain the delay that he was prevented by sufficient cause for not
making the said application within 30 days, as provided under the Limitation
Act, was not applicable in the instant case, as the Limitation Act has no
relevance because of the deficient service. This aspect of the matter has not
been gone into by the learned trial Court while passing the order impugned.
07. Even the petitioner submits that the petitioner has not been served on the
execution petition and instead has attached the property, which is violative of
his Constitutional right and also in violation of the statutory provision
mentioned hereinabove.
08. Heard learned counsel for the petitioner at length and perused the record.
Prima facie, a case for indulgence is made out.
09. Issue notice to the respondent in the main petition, as also in CM,
returnable within four weeks. Requisite steps for service be taken within one
week.
10. List on 17.03.2025.
11. In the meantime, subject to objections from other side and till next date
of hearing before the Bench, the operation of the proclamation of sale dated
07.01.2025 issued under Order XXI Rule 66 CPC is stayed, and consequently
4|Page CM(M) No. 27/2025
the execution proceedings in case titled Updesh Kumar Vs. Tariq Hussain
Shah, pending disposal before Court of learned Principal District and Sessions
Judge Poonch are also stayed.
12. Alteration/Modification/Vacation on Motion.
(WASIM SADIQ NARGAL)
JUDGE
JAMMU
30.01.2025
Mihul
