Memon Ahmed Abdulla vs Vora Gulam Hussein Nathubhai and Others

Shah, C.J.—This revision application is filed against an order of the assistant judge, gondal, Confirming on appeal an order of the civil judge

junior division, jetpur, dismissing an Application made under Order 9, Rule 13, CPC for setting aside an ex Parte decree in a mortgage suit. The

suit was for enforcing a mortgage and was instituted By opponent No. 1 on 28-9-1950. A Defendants summons, returnable on 12-10-1950, was

issued But on 7-10-1950 the serving officer returned the summons unserved reporting that the Defendants did not live at jetpur and were living

abroad On 12-10-1950 which was the date Fixed, the plaintiff applied to the Court saying the Defendants had gone out of the country And it was

not possible to find their whereabouts, and the summons should therefore be Published in the state gazette. The civil Judge granted the prayer and

accordingly a Summons was published in the Saurashtra Government Gazette.

A preliminary decree was thereafter passed against the Defendants on 25-10-1950, whereby time for payment was given to the Defendants till 1-

1-1951. No payment having been made the Plaintiff applied on 2-1-1951 for a final decree and simultaneously applied for substituted Service of

the notice stating that the whereabouts of the Defendants were not known, that at the stage of the preliminary decree also the summons was

published in the Government Gazette and that this time the notice should be affixed on the house of the Defendants. This application too was

granted by the Court and accordingly a notice was affixed on the House of the Defendants. On the returnable date of the notice, namely, 16-1-

1951, the Court Passed a final decree in the terms prayed for by the plaintiff.

On 26-6-1951, Defendants No. 2 Ahmed Abdulla applied for setting aside the ex parte decree on the ground that the summons had not been

duly served on him, that he came to know of the decree for the first time when, on the instructions of his wife, pleader Mr. Sankalchand of Jetpur

sent a telegram to him at ahmedabad informing him of the decree and that this having happened on 20th june the application was within limitation.

The Plaintiff opposed the application contending firstly that the summons had been duly served on the Defendants and secondly that the applicant

had come to know of the decree long before and the application was barred by limitation. The learned civil judge upheld these contentions of the

Plaintiff and dismissed the application, and the learned assistant judge having Agreed with these findings dismissed the appeal.

Mr. Maniar for the Applicant has urged that the summons had not been duly served on the Defendants and that the trial Court has ignored the

very vital provisions of Order 5, Code of Civil Procedure. In the matter of serving the summons on the Defendant. He has Argued that the

proceedings in his case have been throughout taken with the undue hurry and that the object of the Plaintiff was to keep the Defendants in the dark

and to obtain a decree behind their back. Now apart from what the object of the Plaintiff might have been, it does appear that the learned trial

judge has failed to pay due attention to the Provisions of Order 5, Code of Civil Procedure. The summons was returned unserved for the first time

on 7-10-1950 with the endorsement that the Defendants did not live at jetpur and had gone abroad. If that was so, it was the duty of the Plaintiff

to make proper enquiries of the whereabouts of the Defendants, and the Court too should have insisted on it. As Defendants No. 2 says, and that

appears to be so, his wife was living in the house and it is Not alleged that enquiry was made of her regarding the whereabouts of Defendants No.

2 and other Defendants and that she refused to give any information.

Under Order 5, Rule 12, CPC wherever it is practicable, service is to be made on the Defendants in person, unless he has an agent empowered to

accept service, in which case service on such agent shall be sufficient. Under Order 5, Rule 17 where the Defendants or his agent refuses to sign

the acknowledgment, or where the serving officer after using all due and reasonable diligence, cannot find the Defendant, and there is no agent

empowered to accept service on his behalf nor any one on whom service can be made, he is to affix a copy of the summons on the outer door or

some other conspicuous part of the house in which the Defendants ordinarily resides and to return the original summons with a report duly

endorsed thereon. Now here, as I said, no attempt was at all made to find the Whereabouts of the Defendants. In fact, on the serving officer

reporting that the Defendants did not live at jetpur and had gone abroad, the Plaintiff straightway asked for a substituted service and the Court

gave it equally straightway.

Under Order 5, Rule 20, it is only where the Court is satisfied that the Defendants is keeping out of the way for the purpose of avoiding service, or

that for any other reason the summons cannot be served in the ordinary way, substituted service may be effected by affixing a copy of the

summons in some conspicuous place in the Court-house and also upon some conspicuous part of the house in which the Defendants last resided or

in such other manner as the Court thinks fit. Here there was nothing before the learned judge to satisfy him that the Defendants was avoiding

service or that it was not possible to serve the Defendants in the ordinary way, and therefore really speaking there was no occasion to serve the

summons by substituted service.

The report of the returning officer and the Plaintiff''s application which was based on It did not state that the Defendants were avoiding service. No

attempt was made to find Where they had gone and properly speaking the plaintiff could not have averred that their Whereabouts were not

known. As it happened, Defendants no. 2, at any rate, was at ahmedabad. At the time of the preliminary decree, summons was not fixed on the

house of the Defendants Which was the proper thing to do, considering that Defendants no. 2''s wife was living in the House. In the circumstances

a service by publication in the government gazette was hardly Appropriate. at the time of the final decree again no attempts were made to find the

whereabouts of The Defendants and the plaintiff straightway applied for substituted service, which the Court granted, and service was effected by

affixing a copy of the summons on the house of The Defendant, but it was not) affixed in the Court-house. At this stage also there was Nothing to

satisfy the Court excepting that at the time of the preliminary decree summons Was served by substituted service. That was scarcely sufficient to

satisfy the Court in the Manner required under order 5, rule 20.

The learned trial judge ought to have looked into the requirements of the law before Granting substituted service and to have satisfied himself

that due efforts were made by The plaintiff to know the whereabouts of the Defendants and to serve them personally. It is Only after the attempts

made by the plaintiff are unsuccessful that service under order 5, Rule 17 or under order 5, rule 20 should be permitted, it must be said that the

learned Judge has altogether failed to apply his mind to the question. A substituted service of This kind, is not necessarily due service, and it is

open to the Defendants to show that he Had no knowledge of the claim. The decree passed against the Defendants could be set aside On the

ground that the Defendants was prevented from sufficient cause from appearing at the Hearing of the suit, and had this been the only question at

issue, this Court would Certainly have interfered in revision on the ground that the learned trial judge has acted In this case with material

irregularity.

however an application for setting aside an ex parte decree has to be made within thirty Days from the date of the decree, or where the summons

was not duly served, when the Applicant has knowledge of the decree. Now here there is the concurrent finding of both the Courts that the

applicant had such knowledge and this has been held on the strength of the Telegram sent by pleader mr. Sankalchand to the applicant on the 20th

june 1951 at Ahmedabad. The telegram was sent by mr. Sankalchand on the instructions of the Defendant''s Wife who was living at jetpur and it

states that the last auction by the Court of the Defendant''s house in gulam hussein''s case was on 22nd and it asked the Dfendant to come by The

first train with the account books. The plaintiff''s son has no doubt set up a plea at The hearing of the application, though it was not contained in the

written statement to the Application, that Defendants no. 2 had met him after the passing of the decree some time in About march and had talked

about a settlement.

The learned trial judge has not referred to this part of the Defendant''s plea and he has Not recorded any finding on it. The learned appellate judge,

on the other hand, appears to Hold that the Defendants had knowledge of the decree in the manner stated by the plaintiff. Being a finding of fact

this Court will not question it in revision even if it is Erroneous. However both the Courts below have mainly relied upon the telegram ex. 17 itself

For holding that the Defendants was aware of the decree passed in this case. That is an Interpretation which the telegram can bear looking to its

wording; in fact reading between The lines it shows that the Defendants was aware of the decree. But even if the Interpretation of the telegram was

not correct and it becomes a question of law this Court Will not interfere in revision with an erroneous finding of law. I apart from it, the Telegram

mentioned that the decree was passed in gulam hussein''s (plaintiff''s) case and it Not having been shown that there were any other dealings

between the parties the necessary Inference is that he was aware of this mortgage decree itself long prior to the date of This telegram. Therefore it

is not proved that the present application was made within Thirty days of the Defendant''s knowledge of the decree and it is liable to fall on this

Ground. I therefore dismiss the application but in the circumstances of the case direct the Parties to bear their own costs.