1. This Civil Revision Petition is directed against the order the District Munsif, Puttur in I. A. No. 86 of 1966 filed for setting aside an exparate decree dated 26-11-1966.
2. The plaintiff instituted a small cause suit No. 190 of 1966 against the petitioner (defendant) for the recovery of a sum of Rs. 319. 41 due on certain dealings. The defendant was ex parte abd ib 26-11-1966 a decree was passed On 9-12-1966 the present interlocutory application was filed for setting aside the ex parte decree.
3. The main ground alleged in the I. A. is that the defendant was not in the village and that he had gone away to Tirupati. On the contrary, the evidence led by the plaintiff, who opposed the application for setting aside the ex parte decree, was that the petitioner was present in the village when the notice of suit was taken for service but that the refused to receive the summons and that his uncle one Rosi Reddi took away the summons from the process server's hands and drove him away. The learned District Munsif believed the version of the plaintiff and refused to set aside the ex parte decree.
4. Before me it is urged by the learned Counsel for the petitioner that in this case the mandatory provision of Order 5 Rule 17 Civil Procedure Code, was not complied with and if the defendant was not available or he had refused to take the summons, the process server should have affixed the summons in the manner prescribed. But this rule cannot be applied to a case where it transpires that the defendant or somebody on his behalf has snatched away the summons.
5. In M. R. Ved & Co. v. S. B. Hayeem, AIR 1943 Bom 340, Chagla, C. J. (as he then was) held that where a copy of the summons has been given to the defendant and he ran away with it, thus rendering it impossible for the serving Officer to affix it to the building in which the defendant resides, Rule 17 of order V cannot be given effect to and the service in that case must be deemed to the sufficient service. I am respectful agreement with this decision. The Civil Revision Petition therefore fails and is dismissed with costs.
VGP/ D. V. C.
6. Petition dismissed.