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Mannu Lal and anr. Vs. Makhan Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All556
AppellantMannu Lal and anr.
RespondentMakhan Das;kallu Das
Excerpt:
civil procedure code (1908), order v, rule 15 - summons--question of sufficiency of service of summons. - .....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.' if it had been shown to the complete satisfaction of the court that the present appellant could not be found and that service for that reason had been made upon his paternal uncle, who lived with him, the court would have been entitled to have held the service sufficient. but there appears no evidence whatever that there was any difficulty in finding the appellant. it appears to have been considered that it was quite sufficient to hand the summons to his paternal uncle. this view of the law is not correct. we must allow the appeal, set aside the order of the court below, grant the application to set aside the decree and remand the case with.....
Judgment:

Henry Richard, Kt. C.J. and Piggott, J.

1. This appeal arises out of an order of the court below refusing to set aside an ex parte decree. The applicant in the court below swore that he had never been served with the summons. There was no affidavit contradicting this statement. The learned Judge says 'the summons was delivered to the own paternal uncle of the applicant. Now the applicant pleads that the paternal uncle is not in his senses but he gives no proof of it, nor does he give any proof to show that he was not informed of the institution of the suit.' The service of the summons in suits is a very important part of the procedure. The Code itself provides that as far as possible service must be personal. Order V, Rule 15, provides that 'where in any suit 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.' If it had been shown to the complete satisfaction of the court that the present appellant could not be found and that service for that reason had been made upon his paternal uncle, who lived with him, the court would have been entitled to have held the service sufficient. But there appears no evidence whatever that there was any difficulty in finding the appellant. It appears to have been considered that it was quite sufficient to hand the summons to his paternal uncle. This view of the law is not correct. We must allow the appeal, set aside the order of the court below, grant the application to set aside the decree and remand the case with directions to re-admit the case upon its file of pending cases and proceed to dispose of it according to law.


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