H.R. Malhotra, J.

1. This appeal under Section 96 of the Code of Civil Procedure is made to assail impugned order passed by Additional District Judge on 4.7.2007 whereby an application of the defendant/appellant herein made under Order 37 Rule 4, CPC for setting aside the decree dated 31.8.2006 was rejected.

2. Brief facts as set out in the appeal as also noticed in the plaint are that the plaintiff/respondent herein filed a suit in the Court below for a sum of Rs. 5,76,200/- under the provisions of Order 37, CPC.

3. Summons in the prescribed form were sent to the defendant by the trial judge directing the defendant to enter appearance within ten days from the date of service. The defendant entered appearance before the trial Judge on 24.11.2005, however, it came to the notice of the defendant that a decree had already been passed in favour of the plaintiff and against the defendant on 24.12.2005 on the ground that the defendant failed to enter appearance within ten days of service of summons.

4. The defendant inspected the judicial record and came to know that the suit itself has been filed on 24.11.2005 and, therefore, the question of the defendant being served on 19.11.2005 did not arise. The defendant, therefore, made an application for setting aside the decree. The trial Judge allowed the application on 22.5.2006 holding that service on the defendant was not proper. The plaintiff was directed to take fresh steps for summoning the defendant in accordance with law as prescribed under Order 37, CPC. In the meantime, the defendant had changed his residence but inadvertently did not inform the Court about the change of address and as such summons to the defendant in the prescribed manner were again sent on his earlier address. The defendant again did not enter appearance and suffered decree again for not having entered appearance within ten days.

5. Learned Counsel appearing for the defendant/appellant herein has candidly admitted that there were lapses on the part of the defendant in not furnishing the fresh address but simultaneously urged that for this lapse, he should not have been made to suffer decree against him for a hefty sum of Rs. 5,76,200/-, particularly, when according to Counsel for the defendant, the plaintiff has no case and that documents on the basis of which the present suit has been filed are fabricated documents.

6. On the other hand, learned Counsel appearing for the respondent urged that the defendant with a view to delay the case of the plaintiff resorted to delaying tactics by not appearing despite having been served by way of affixation on the address furnished by him while entering appearance and, therefore, the trial Judge rightly passed the decree against the defendant for not having entered appearance within the statutory period.

7. Learned Counsel for the appellant/defendant to meet the arguments of the Counsel for the respondent/plaintiff urged that affixation of summons had taken place on his earlier address and that the plaintiff had manipulated false service report earlier that the defendant had refused to accept the summons whereas in actuality, the defendant was not residing on the address where summons were issued. He further urged that in a suit filed under Order 37, CPC, the summons are to be accompanied by the copy of the plaint and the annexures but in this case even assuming that service was complete by way of affixation but the said summons did not contain either the plaint or the annexures thereto and, therefore, service of summons should not have been treated as complete service as prescribed under Order 37, CPC.

8. At the end, learned Counsel for the appellant urged that the defendant be afforded another opportunity to contest the suit on merits as he has a good case to contest and further urged that the defendant can be put to any terms and conditions while affording him an opportunity to contest his suit.

9. Though learned Counsel for the appellant also supported his arguments with two authorities; one reported in AIR 1984 Del. 175 [LQ/DelHC/1983/128] titled Punjab and Sind Bank v. Ramji Das Khanna & Anr. and Another in 138 (2007) DLT 259 titled Goyal MG Gases Ltd. v. Premium International Finance Ltd. & Ors., to strengthen his arguments that service by affixation is not a proper service unless it contained the copy of the plaint and documents relied upon by the plaintiff but I am not inclined to decide in favour of the plaintiff on the aspect of proper service, more particularly, when the defendant is himself guilty of not furnishing the changed address which he was under legal obligation to do so as a result of which the case of the plaintiff got delayed.

10. Simultaneously, this Court also feels that the defendants case went uncontested because of aforesaid reasons and for that the defendant suffered decree against him without being afforded opportunity to contest the suit. Therefore, in my opinion, it shall be expedient and in the interest of justice and also equity demands that the defendant should be afforded an opportunity to contest the suit on merits. However, since the defendant is also responsible for suffering decree against him for want of furnishing the changed address, as such, he must deposit entire decretal amount along with interest so as to secure the interest of the plaintiff/respondent, in case, he succeeds in the suit ultimately.

11. Consequently, while allowing the appeal, the suit is ordered to be remanded back to the learned trial Judge to deal with the matter on merits. I am told that the appellant has already deposited 50 per cent of the decretal amount but he must deposit the rest of the 50 per cent amount also within 15 days from today and entire decretal amount be converted into an FDR initially for a period of six months so as to earn interest for the party, who ultimately succeeds. This results in setting aside the impugned order dated 4.7.2007 resulting in acceptance of the appeal.

12. The appeal stands disposed of in terms of the aforesaid order.

13. Parties are directed to appear before the learned trial Judge on 5th February, 2009.