Request for citation for setting aside the order for non issuance of summons
Mallesh
(Querist) 20 November 2015
This query is : Resolved
My father was a government employee and he passed away in January 2008 and one of his colleague had filed a money recovery case saying my father had borrowed money from him and he has a cheque to that effect and he made me, my mother and the bank party where my father was working, to withhold the benefits payable to my mother on death of my father. The Bank received the summons were as I and my mom didn't receive the summons and at that time, the court had not stopped or objected for non payment of his benefits. The Bank had asked me to get the order sheet from the court so that they release the payment. I applied for the entire set of the order sheet and submitted to the bank and the payment was released. He has forged my father's signature and has made a promissory note and also a notorised affidavit of my father saying that in failure of non payment of the loan amount his legal heirs will make the payment. I discussed the issue with the advocate, he told me that once when you receive the summons to approach him and I never received the summons and after two months I vacated the home and moved to a different place in the same city. I again check with the advocate he told me once I receive the summons, I should contact him. Hence I didn't receive any summons and recently I received an expatiate decree to release the payment, on what grounds can i file a case for recalling of the case and any citations which can help me to recall the case, please help
ROHIT SHARMA
(Expert) 20 November 2015
1. you can file a C.M.A. in that suit No. _______: u/s 151 C.P.C. : before the same court : to set aside the ex=partee order u/order 9 Rule 13 of C.P.C. citing the reasons that you have had shifted to new location and hence the summons were not served upon you.
2. Seek your advocate's assistance.
Rajendra K Goyal
(Expert) 20 November 2015
Prey the court to set aside the ex-party decree. Consult local lawyer.
Rajendra K Goyal
(Expert) 20 November 2015
Repeated query:
http://www.lawyersclubindia.com/experts/Grounds-for-setting-aside-the-decree-550886.asp#.Vk8s2HYrLIU
R.K Nanda
(Expert) 21 November 2015
Repeated query.
P. Venu 
(Expert) 21 November 2015
What do you mean by "I received an expatiate decree to release the payment"? What is the decree?
Your father had been a Government employee. How is that the Bank is involved?
Anyhow, the principle involved is simple. Even if your father had borrowed the money, the liability of the legal heirs is restricted to the estate that they had inherited. And the retirement benefits which your mother is entitled in the capacity of the deceased government servant is not the part of that estate and hence cannot be withhold or attached. The Bank's stand is unlawful.
Mallesh
(Querist) 21 November 2015
Dear Sirs,
Thanks for your reply; We have filed the misc. petition in the same court, to set aside the ex-partee decree. The judge is more in settling the case, the judge is asking me settle the case with the other party.
I would request, if you can help me with any citation which will help me with the case, were summons not served and on that grounds were I can request the court to reopen the earlier case.
P. Venu
(Expert) 21 November 2015
You may move the Appellate Court or the High Court.
K.S.Srinivas
(Expert) 23 November 2015
Agreed with Sri P.Venu.
T. Kalaiselvan, Advocate
(Expert) 26 November 2015
The citations are not required for this moreover since you have already entered appearance and filed for setting aside the exparte decree, there is no use of filing any application for not receiving summons.
Your advcate may probe into the reasons for this exparte decree, clarify from him.
