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Ambika Prasad Vs. Kodai Upadhya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All45
AppellantAmbika Prasad
RespondentKodai Upadhya
Excerpt:
.....and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - if the suit failed nothing further was to be done, but in case the suit succeeded and ram raj pandey so desired he could on his coming back to this country apply for setting aside the ex parte decree.ordermalik, j.1. this revision has been filed by one ambika prasad. kodai upadhya, the plaintiff, filed a suit against ram raj pande for a declaration that the deed of gift executed by kodai upadhya in favour of ram raj pande was executed for certain ulterior reasons at the time when he was going on a pilgrimage and that there was no intention of conveying the property to ram raj pande. ram raj pande, it appears, is in bangkok which is under enemy occupation. there was some difficulty in the service of summons and the lower court thought that in case it stayed the suit till the end of the war the plaintiff's interest may suffer and in case he proceeded ex parte against ram raj pande, ram raj pande's interest was bound to suffer as nobody would be able to represent him. the applicant,.....
Judgment:
ORDER

Malik, J.

1. This revision has been filed by one Ambika Prasad. Kodai Upadhya, the plaintiff, filed a suit against Ram Raj Pande for a declaration that the deed of gift executed by Kodai Upadhya in favour of Ram Raj Pande was executed for certain ulterior reasons at the time when he was going on a pilgrimage and that there was no intention of conveying the property to Ram Raj Pande. Ram Raj Pande, it appears, is in Bangkok which is under enemy occupation. There was some difficulty in the service of summons and the lower Court thought that in case it stayed the suit till the end of the war the plaintiff's interest may suffer and in case he proceeded ex parte against Ram Raj Pande, Ram Raj Pande's interest was bound to suffer as nobody would be able to represent him. The applicant, Ambika Prasad, it appears, is a friend of Ram Raj Pande and in his absence is looking after his property. The lower Court thought that it would be safer to implead Ambika Prasad as a party who may then look after the interest of Ram Raj Pande and directed that Ambika Prasad should be impleaded. It is against that order that Ambika Prasad has filed this revision. There is this to be said for the order of the lower Court that there being no statutory provision for representation of a person so detained in enemy country the learned Judge felt himself bound to invent a procedure for himself. But, I am afraid, the Civil Procedure Code makes no provision for the representation of a person who is still alive by a person who intermeddles with his estate. To my mind the proper procedure would have been to issue processes for substituted service under O. 5, Rule 20, Civil P.C., and then to proceed with the trial of the suit. If the suit failed nothing further was to be done, but in case the suit succeeded and Ram Raj Pandey so desired he could on his coming back to this country apply for setting aside the ex parte decree. I therefore allow this revision, set aside the order of the Court below and direct that the name of Ambika Prasad shall be removed from the record and the hearing of the case will be proceeded with according to law. The parties will bear their own costs.


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