Badhoram Mistri @ Lohari vs Dandapani Sahu

P.K. Mohanti, J.—This appeal arises out of an order dismissing an application under Order 41, Rule 21, Code of Civil Procedure.

Title Suit No. 26 of 1972 filed by the Respondent against the Appellant was dismissed ex parte. He filed Title Appeal No. 9 of 1973 which was posted to 21-7-1973 for hearing. As the Appellant did not enter appearance, the appeal was allowed ex parte. The Appellant filed (II petition to have the ex parte decree against him set aside on the ground of fraudulent suppression of notice. It was alleged that he came to know about the ex parte decree on 10-4-1974.

The Plaintiff-Respondent filed counter contending that although he took repeated steps for service of notice, the Appellant evaded service and finding no other alternative he got the notice served under Order 5, Rule 20, Code of Civil Procedure: His further contention was that the Appellant was fully, aware of the institution of the appeal, but he avoided service of the notice.

At the enquiry, the Appellant led evidence in support of his contention that he had no knowledge about the institution of the suit and the appeal prior to 10-4-1974. The Plaintiff-Respondent declined to adduce any evidence. The learned Subordinate Judge on a consideration of the evidence led by the Appellant came to the finding that the notice under Order 5 Rule 20, CPC had been duly served and accordingly he dismissed the application for rehearing of the appeal. Aggrieved by the order of dismissal, the Appellant has come up to this Court.

The Stamp Reporter has raised an objection about the maintainability of the appeal in the Court. According to him, the value of the subject matter of the suit being Rs. 500/- the appeal lies to the District Judge and not to the High Court. He has relied on Section 21(1)(a) of the Bengal, Agra and Assam Civil Courts Act 1887, which provides that an appeal from a decree or order of a Subordinate Judge shall lie to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed Rs. 5000/-.

Apparently the Stamp Reporter has overlooked the provisions of Section 106 of the CPC which run as follows:

Where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise at the appellate jurisdiction than to the High Court.

According to the second part of the section in italics above, where the order appealed from is passed by a Court in the exercise of appellate jurisdiction, the appeal lies to the High Court. In the instant case the order dismissing the application under Order 41, Rule 21, CPC was passed by the learned Subordinate Judge in the exercise of appellate jurisdiction. Hence the appeal lies to the High Court and not to the District Judge. The objection raised by the Stamp Reporter is overruled.

It was urged on behalf of the Respondent that the application under Order 41 Rule 21, CPC was barred by limitation. The ex parte decree passed on 31-7-1973 and the application under Order 41 Rule 21, CPC was filed on 19-4-1974. Article 123 of the Limitation Act, 1963 provides a limitation of 30 days "to set aside a decree passed ex parte or to rehear an appeal, decreed or heard ex parte", and the starting point of limitation given is "the date of the decree or where the summons or notice was not duly served, when the applicant had the knowledge of the decree". The Explanation to this Article says:

For the purpose of this Article, substituted service under Rule 20 of Order V of the CPC 1908, shall not be deemed to be due service.

The Explanation makes it clear that substituted service under Rule 20 of Order V, CPC is not due service for the purpose of this Article. Therefore, the time would begin to run not from 31-7-1973 when the ex parte decree was passed, but from the date of knowledge of the decree. Such knowledge came to the Appellant on 10-4-1974. There is no evidence on behalf of the Respondent from which any conclusion can be arrived at that the Appellant came to know of the decree prior to 10-4-1974. If this is the date from which the time would begin to run, then the application for rehearing of the appeal which was filed on 19-4-1974 was clearly within time. No doubt, the Appellant stated during his evidence that on 2-9-1914 he received the notice in Execution Case No. 6 of 1974 which arose out of the ex part, decree passed against him. But he can be fixed with knowledge of the decree not from that date but from 10-4-1974 when he got the records is inspected" by his lawyer in the Record Room. What is contemplated by Article 123 Limitation Act is a definite knowledge of the ex parte decree having been passed on a certain date, in a certain suit, in a certain Court, in respect of a certain subject matter and the reliefs which were awarded by the decree. All these particulars are not mentioned in a notice under Order 21, Rule 22, Code of Civil Procedure. I, therefore, hold that the Appellant got definite knowledge of the decree on 10-4-1974 after inspection of the records and the application under Order 41 Rule 21, CPC filed by him on 19-4-1974 was within time.

Relying on the Explanation to Section 123 of the Limitation Act, it is urged on behalf of the Appellant that there was no due service on him and hence the application for rehearing of the appeal should be allowed. As already indicated, the Explanation starts with the words "for the purpose of this Article". So it has to be confined to that Article alone and the limitation is to be computed from the date of the knowledge of the decree.

Order 5 Rule 20(2), CPC provides:

Service substituted by order of the Court shall be as effectual as if it had been made on the Defendant personally.

Once substituted service under Order V Rule 20, CPC is made, it is as effective as personal service and non-appearance despite such service would justify an ex parte decree against the party so served. The Explanation to Article 123 of the Limitation Act does not abrogate in any way the provisions of Sub-rule (2) of Rule 20 of Order V, Code of Civil Procedure. Once the person served with notice under Order V Rule 20, CPC is permitted to make an application for setting aside an ex parte decree within 30 days from the date of knowledge of the decree, it still remains for him to prove that he was not duly served. If he fails in that, then while his application under Order 41 Rule 21 shall be deemed to have been made within time, he would fail on the merit of his application.

Coming to the merits of the application, it is to be stated at the outset that substituted service has been provided as a last resort to be used by the Court when other means of service are unavailable. There is nothing on the record to show that a reasonable attempt was made to serve the notice on the Appellant and that personal service could not reasonably be effected. There is absolutely no evidence to show that the Appellant was keeping out of the way for the purpose of evading service. It appears that he is an employee in the Hindustan Steel Ltd., Rourkela. The Appellant deposed that no summons or notice was ever tendered to him and that no notice had been proclaimed by beat or drum in the area near about his place of residence. After getting the notice in Execution Case No. 6 of 1974, he enquired about the decree and on inspection of the record he came to know that an ex parte decree had been passed against him in the appeal after substituted service of notice. P.W. 2 holds a cycle repairing shop in front of the house of the Appellant. His evidence is that he remains present in the shop from 5 A.M. to 10 P.M. in the night and that in 1973 there was never any proclamation of notice in that locality. His evidence was discarded by the learned Subordinate Judge on the ground of interested ness, as he stated that he was keeping his tools in the house of the Appellant sometime prior to 1970. In my opinion, this is hardly a ground on which the evidence of the witness should be jettisoned. P.W. 3 is the process-server who is alleged to have served the notice under Order V Rule 20, Code of Civil Procedure. He stated that the Appellant was not known to him and that he affixed the notice on the gate of the house identified to him by the Respondent to be the house of the Appellant. The Respondent did not, however, come to the box to testify that the house identified by him to the process-server belonged to the Appellant. The process-server stated that the Respondent and one Simadri Khetri were witnesses to the service of notice. But subsequently he changed the version and said that when he wanted to write down his report, he asked the Respondent to call the witness. The subsequent statement would show that the witness was not present at the time of service. Neither Simadri Khetri, who attested the service report of the process-server, nor the drummer has been examined. The process-server, stated that he has been staying at Bisra Road, where the service was effected, for 8 to 9 years, that the place where the notice was served would be at a distance of about half a furlong or less from the place where he was staying and that he was acquainted with many people of that area. In the next breath he stated that he was acquainted with one or two persons of the area where the notice was served and that the people of the locality expressed their unwillingness to attest the service report. He could not give the names of those persons. In view of the conflicting versions of the process-server, his evidence does not inspire confidence. In the premises aforesaid, it is difficult to hold that the service of notice on the Appellant was sufficient or that the Appellant had knowledge of the passing of the decree or of the proceedings antecedent thereto prior to 19-4-1974. I, therefore hold that there is sufficient cause to set aside the ex parte decree.

In the result, the appeal is allowed, but in the circumstances, without any order as to costs. The ex parte decree passed in Title Appeal No. 8 of 1973 is set aside. The Subordinate Judge is directed to rehear the appeal and dispose of the same expeditiously. The parties are directed the appear before the Subordinate Judge on 14th March, 1977. The lower Court records be returned forthwith.

Appeal allowed.