Sri. Bansidhar Jena vs Trilochan Jena and Another

P.K. Mohanti, J.—This civil revision is directed against an appellate order allowing an application under Order 9, Rule 13 Code of Civil Procedure.

In T. M. S. No. 18 of 1974 filed by the Petitioner against the opposite parties, a preliminary decree was passed on 9-9-1974 and a final decree was passed on 17-11-1975. Both the decrees were passed ex parte. On 29-4-1976 possession of the mortgaged property was delivered to the Petitioner in execution of the final decree. On 18-10-1976 opposite party No. 1 Trilochan Jena filed an application under Order 9, Rule 13 CPC for setting aside the ex parte decrees on the ground of non-service of the suit summons and the notice in the final decree proceeding. His contention was that he was staying at Rengali from the year 1971 till 10th October. 1976 and after his return to the village he learnt from one Gokuh Jena on 13-10-1976 that an execution case had been filed against him by the Petitioner.

Thereafter on inspection of the records he came to know about the ex parte decree passed against him

The Petitioner filed counter denying the aforesaid allegations and asserting that the Opposite party No. 1 had been duty served with summons in the suit and notices in the final decree proceedings.

At the enquiry, both the parties adduced evidence in support of their respective contentions and the learned Munsif on a consideration of the same found that there was due service of the processes and accordingly rejected the application under Order 9, Rule 13, CPC Code. On appeal, the learned Subordinate Judge differed from the finding of the learned Munsif and came to hold that the opposite party no 1 was staying away from his village and the suit summons addressed to him was not served on him. He also held that the notices addressed to opposite party No. 1 in the final decree proceedings were tendered to opposite party No. 2, but the contents thereof were not read over and explained to him and as such there was no due service of the notices.

Rule 13 of Order 9, CPC which provides for the setting aside of ex parte decrees requires the applicant to satisfy at least one of the following conditions before the decree can be set aside, named (1) that the summons was not duly served, or (2) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. In the present case opposite party No. 1 based his claim only on the first of the two grounds, namely, that the summons and notices were not duly served.

Service of summons under Order 5 of the CPC may be effected in different ways. According to Rule 15 of Order 5, as it stood pilar to the commencement of the Amending Act of 1976, where the Defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the Defendant who is residing with him. In the instant case, the process-server reported that the opposite party No. 1 was not found and the notices addressed to him were served by tending copies thereof to his elder brother Achyutananda Jena who was living with him in joint mess, but the said Achyutananda Jena refused to acknowledge service of the notices after he was appraised of their contents (vide Exts. 3-a and A-1). The process-server who was entrusted with the service of the notices (Exts.3 and A) was examined as P.W. 3. He has specifically stated in his report Ext. A/1 that opposite party No. 2 himself read the notice addressed to opposite party No. 1 and being apparised of its contents he refused to acknowledge service. So a copy of the notice addressed to opposite party No. I was affixed to the Sadar door of his house. In paragraph 3 of his deposition he clearly stated that his reports were correct and true. Apparently the learned Subordinate Judge overlooked this evidence when he observed as follows:

...from his evidence and also from the service report Ext. A-1, it does not appear that he read over and explained the contents of the said notice to Achutananda Jena and as such, the said notice cannot be held to have been duly served....

The process-server is not required to read over and explain the contents of a summons or notice when the Defendant himself reads the same and refuses to acknowledge service. It is important to note that opposite party No. 2 had already entered appearance in the suit before the notices (Exts. 3 and A) were tendered to him. The decision in Smt. Kamal Ray Vs. Bhagabat Singh, , relied upon by the learned Subordinate Judge is, therefore, not applicable to the present case.

Though the words "duly served" used in Order IX, CPC and Article 123, Limitation Act have not been defined anywhere, Section 27, CPC clearly indicates that serve effected in the manner prescribed by the Code is due service. If a Defendant is not found, service effected on an adult male member of his family is due service.

The notice having been duly served, the presumption is that opposite parry No. 1 had obtained knowledge of the proceedings even though he was absent from home at the time of service. It is not shown that he was not in communication with opposite party No. 2. No effort was made to examine opposite party No. 2 at the enquiry. There is nothing on the record to show that opposite party No. 2 had an interest adverse to that of opposite party No. 1 in the subject matter of the suit. Opposite party No. 1 wanted to make out a case that he was living separate from opposite party No. 2. The learned Munsif on a -discussion of the evidence on the record came to the finding that they were never separated and that they were residing together. This finding has not been disturbed by the appellate Court. It is also not challenged before me.

Article 123 of the Indian Limitation''\\ Act provides for a period of thirty days for an application to set aside an ex parte decree. Where the summons was duly served, application to set aside ex parte decree should be filed within thirty days from the date of decree and not from the date of know ledge thereof. The application under Order 9, Rule 13, CPC having been made long after expiry of the period of thirty days from the date of the decree, it was barred by time.

The appellate Court illegally exercised its jurisdiction and acted with material irregularity in allowing the application under Order 9, Rule 13, CPC Code.

For the foregoing reasons, the Civil Revision is allowed, the order of the learned Subordinate Judge being set aside and that of the learned Munsif being restored. In the circumstances, parties to bear their own costs.

Revision allowed.