Skip to content


Champat Singh Vs. Mahabir Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All331; 43Ind.Cas.632
AppellantChampat Singh
RespondentMahabir Prasad and ors.
Excerpt:
.....prima facie the service must he personal service by delivering or tendering a copy as mentioned in rule 10, rule 17 provides, amongst other things, that where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to receive service on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily re sides, or carries on business, or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon, or annexed thereto, stating that he has so affixed the copy, the circumstances under which, he did so and the..........that the case should be heard ex patte against them, and on the 11th of january 1916 an ex parte decree was passed. thereupon champat singh applied to set aside the decree on the ground that he had not been duly served. 'the court below states that the applicant had, not shown that he had no knowledge of the sun': that the inmates of the applicant's house were present when the summonses were posted on the house on the 30th august 1915 and the 28th of september 1915. the learned judge goes on to say that he does not believe that the applicant had no knowledge of the suit and the date fixed. order ix, rule 13, is as follows: 'in any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside,.....
Judgment:

Henry Richards, C.J.

1. This appeal arises under the following circumstances. The suit was instituted in the year 1915 and was a suit to realise the amount of a mortgage. One of the defendants was Champat Singh for himself and as guardian for certain minors. The 17th of September was fixed to settle issues. On the 13th of August 1915 the process-server went to the house of Champat Singh and found him not at home. He was told that he had gone to bathe. This service was not sufficient and a fresh date, namely, the 27th of November, was fixed. On the 28th of September the process-server again went and learnt that Champat Singh was not in the house, that he had gone to another village and was expected back in a couple of days. The process-server then affixed the process to the door of Champat Singh's house. No order seems to have been obtained by the plaintiff from the Court as to whether or not this service was to be declared good. The case was called on the 27th of November, Champat Singh and the minors were absent and the Court directed that the case should be heard ex patte against them, and on the 11th of January 1916 an ex parte decree was passed. Thereupon Champat Singh applied to set aside the decree on the ground that he had not been duly served. 'The Court below states that the applicant had, not shown that he had no knowledge of the sun': that the inmates of the applicant's house were present when the summonses were posted on the house on the 30th August 1915 and the 28th of September 1915. The learned Judge goes on to say that he does not believe that the applicant had no knowledge of the suit and the date fixed. Order IX, Rule 13, is as follows: 'In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed 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 as against him.' It thus appears that unless the defendant has been 'duly served', he is entitled as of right to have the ex parte decree set aside. Order V deals with the mode of service. Prima facie the service must he personal service by delivering or tendering a copy as mentioned in Rule 10, Rule 17 provides, amongst other things, that where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to receive service on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily re sides, or carries on business, or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon, or annexed thereto, stating that he has so affixed the copy, the circumstances under which, he did so and the name and address of the person, if any, by wham the house was dentised, and in whose presence the copy was affixed. Rule 19 provides that 'Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer upon oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit.' In my opinion the defendant under circumstances like the present could not be said to have been 'duly served', until an order under Rule 19 had been made by the Court declaring that the summons had been 'duly served,' and in my opinion this is an order which ought to be obtained as soon as reasonably possible after the return is made by the serving officer. It is obvious that it is most inconvenient to postpone making the order adjudicating on the sufficiency of the service until the day of hearing. The plaintiff may have had all the expense of bringing his witnesses and paying his Pleader only to find that the case cannot go on and the Court may have a case in its list for hearing which cannot be proceeded with. In the present case a suit which was commenced in 1915 will have to be heard over again. It is for the plaintiff to bring his case properly into Court. Under the circumstances of the present case I think that Champat Singh was entitled to have the ex parte decree set aside. I would allow the appeal.

Banerji, J.

2. I also would allow the appeal. The Court was bound to set aside the ex parte decree if the summons to the defendant was not duly served. Order V, Rule 17, prescribes the mode in which service may be effected by fixing a summons to the outer door of the house of the defendant. In the present case the process-server reported that the defendant was not at his house but had gone, to some other village, and on that ground he fixed the summons to the outer door of the house. This was not service made with due diligence and, therefore, it was not due service within the meaning of the Code. This was so held in the case of Sakina v. Gauri Sahai 24 A. 302 : A.W.N. (1902) 68, It is clear, therefore, that in the present case service was not duly made as directed by the Code, and the Court below ought to have set aside the ex parte decree. It was not sufficient to find, as the Court below has done, that the defendant had knowledge of the suit. What the Court had to decide was whether service had been (July made, and this point the Court did not decide at all. Upon an examination of the record it appears that service was not duly made. On this ground the appellant is entitled to have the ex parte decree set aside.

3. The order of the Court is that the appeal be allowed, the ex parte decree set aside and we direct that the case be restored to its original number and heard according to law. We make no orders as to costs


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //