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Appabhai Motibhai Vs. Laxmichand Zaverchand and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 80 of 1953
Judge
Reported inAIR1954Bom159; (1953)55BOMLR916; ILR1954Bom243
ActsCode of Civil Procedure (CPC), 1908 - Order 5, Rules 10 and 21A - Order 9, Rule 13
AppellantAppabhai Motibhai
RespondentLaxmichand Zaverchand and Co.
Appellant AdvocateD.V. Patel, Adv.
Respondent AdvocateC.G. Shastri, Adv.
Excerpt:
- - 1. an interesting question arises in this revision application as to the effect of service of a summons by a registered post under order 5, rule 21a, civil p, c. shastri is that although that decision was good law at the time when the decision was given, by reason of the enactment of rule 21a in order 5 that decision is no longer good law. therefore, it is for the court which hears the application to set aside the 'ex parte' decree to bo satisfied that the summons was not duly served. makan bhula (a)',and in my opinion that principle is perfectly sound......of service of a summons by a registered post under order 5, rule 21a, civil p, c., 1908. the 'ex parte' decree was passed on 22-6-1944, and the defendant was served by registered post. the packet was returned marked 'refused'. execution proceedings were taken out in 1951 arid it was at that time according to the defendant that he came to know that a decree had been passed against him and he applied to set aside the 'ex parte' decree. the trial court dismissed the application, and in appeal the learned district judge has confirmed that decision.the defendant in his affidavit on the application to set aside the 'ex parte' decree stated that he was not in ahmedabad at the material time and he therefore did not receive the registered packet containing the summons.2. in -- 'sunder spinner v.....
Judgment:

Chagla, C.J.

1. An interesting question arises in this revision application as to the effect of service of a summons by a registered post under Order 5, Rule 21A, Civil P, C., 1908. The 'ex parte' decree was passed on 22-6-1944, and the defendant was served by registered post. The packet was returned marked 'refused'. Execution proceedings were taken out in 1951 arid it was at that time according to the defendant that he came to know that a decree had been passed against him and he applied to set aside the 'ex parte' decree. The trial Court dismissed the application, and in appeal the learned District Judge has confirmed that decision.

The defendant in his affidavit on the application to set aside the 'ex parte' decree stated that he was not in Ahmedabad at the material time and he therefore did not receive the registered packet containing the summons.

2. In -- 'Sunder Spinner v Makan Bhula', AIR 1922 Bom 377 (A) a Division Bench of this Court laid down that the Court must allow the defendant a retrial, if, after the decree has been passed against him on evidence that the summons was sent by registered post and returned refused, he appears and denies that the packet had ever been delivered to him by the postal authorities. What is urged by Mr. Shastri is that although that decision was good law at the time when the decision was given, by reason of the enactment of Rule 21A in Order 5 that decision is no longer good law. Rule 21A was enacted subsequent, to the decision in -- 'Sunder Spinner v: Makan Bhula (A)'.

Rule 21A is an enabling rule and it permits the Court to cause a summons to be served by registered post. The rule further provides that an acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be 'prima facie' proof of service. It is clear, therefore, that when a registered packet is returned marked refused, it is not 'prima facie' evidence of proof of service. The rule goes on to say :

'In all other cases the Court shall hold such inquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.'

In this particular case the trial Court held an inquiry and declared that the summons had been duly served. Mr, Shastri's contention is that once an inquiry is held as contemplated by this rule and once a declaration is made by Court, that declaration becomes conclusive and the summons must be held to have been duly served, and, says Mr. Shastri, that if the summons was duly served, then it is not open to the defendant to challenge the 'ex parte' decree on the ground that the summons was not duly served.

Under Order 9, Rule 13, a defendant may apply to the Court which passed the 'ex parte' decree for an order to set it aside, and if he satisfies the Court that the summons was not duly served, the Court shall make an order setting aside the decree. Therefore, it is for the Court which hears the application to set aside the 'ex parte' decree to bo satisfied that the summons was not duly served. That Court is not bound by the decision given by the trial Court. The decision of the trial Court as to the sufficiency of service is only for the purpose of passing the 'ex parte' decree. It is not a decision which can possibly bind the defendant because the inquiry was held 'ex parte' and the defendant was not represented at the inquiry.

Notwithstanding the inquiry under Order 5, Rule 21A, it is open to the defendant to satisfy the Court to which he has made an application for setting aside the 'ex parte' decree that the summons was not duly served, upon him. In a case where service is by registered post, he can satisfy the Court that the summons was not duly served, if he has not acknowledged the receipt of the summons on the registered packet, by showing that the statement on the registered packet that he had refused service of the summons was not correct. In this case the only evidence of service of the summons is the endorsement on the registered packet. That endorsement is made by the postman, and the defendant comes before the Court and says that he was not in Ahmedabad at the material lime. There is no other evidence on record. Under these circumstances the decision in -- 'Sunder Spinner v. Makan Bhula (A)' directly applies.

3. Order 5, Rule 21A, merely deals with the mode of service. As to whether a service is proper or not, where the service is effected by registered post, must be determined by the principle enunciated by Sir Norman Macleod and Shah J. in -- 'Sunder Spinner v. Makan Bhula (A)', and in my opinion that principle is perfectly sound. Ordinarily, service must be effected personally upon a defendant. Order 5, Rule 21A, gives a special facility to the Court in these modern days to effect service by registered post. But even So that convenience must be properly circumscribed so as not to defeat the ends of justice, and it would be a very serious thing if a defendant was not entitled to have an 'ex parte' decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. Therefore, in my opinion, the Courts below were wrong in refusing to set aside the 'ex parte' decree on the application made by, the defendant.

4. I would, therefore, set aside the order of the trial Court and order that the 'ex parte' decree dated 22-6-1944, be set aside. The opponent must pay the costs of this revision application. Costs of the two Courts below will be costs in the cause.

5. Application allowed.


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