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Nathu Vs. Sarup Singh - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All368; 39Ind.Cas.544
AppellantNathu
RespondentSarup Singh
Excerpt:
civil procedure code (act v of 1908), order v, rule 17 - service of summons--personal service, necessity of. - - this defence held good in the court of first instance and the plaintiff's suit was dismissed......when the case was called on. this circumstance makes us doubt the truth of the allegation in the affidavit of the plaintiff that the defendant was present in the court compound on the day of the hearing of the appeal. in a case very similar to the present case, namely, sakina v. gauri sahai 24 a. 302 ; a.w.n. (1902) 68 a bench of this court entertained an appeal against an order of the court below refusing to set aside an ex parte decree. the court pointed out that personal service ought to be had in all cases where it is reasonably possible. we think that this is a very sound practice and that the provisions of the code as to the service of process ought to be strictly observed. we allow the appeal, set aside the ex parte decree of the court below and direct the court to re-admit the.....
Judgment:

1. This appeal arises out of an application in the Court below to restore an appeal which had been decreed ex parte. The plaintiff brought a suit upon a number of bonds bearing very high rates of interest. The defendant admitted the execution of the bonds, but pleaded that the bonds were given as security in connection with other matters. This defence held good in the Court of first instance and the plaintiff's suit was dismissed. The plaintiff preferred an appeal and the case having been called on the defendant was absent. Thereupon the Appellate Court allowed the appeal ex parte. It appears that service of the notice of the appeal was not made personally. It was made by affixing a copy of the notice to the door of the defendant's house while he was absent. The process-server was informed of the absence of the defendant and that he would return in the course of a few days. Instead of waiting (as he ought to have done) for a few days, he affixed a copy of the notice. We think that the Court ought not to have held this service to be sufficient. It, however, did so. The defendant in support of his application to have the decree set aside swore an affidavit (no doubt somewhat vague), in which he stated that he was unaware of the time fixed for the hearing of the appeal. The other side put in an affidavit to the effect that the defendant was actually present in the Court compound when the appeal was heard. The Court below does not appear to have examined either of the parties as to the truth of their respective statements. It seems somewhat strange if the defendant was present that he should have made no effort to maintain the decree in his favour granted by the Court of first instance either by appearing in person or by asking the Court to give him time to instruct a Pleader. Furthermore it seems a little strange that the plaintiff (if he had really seen the defendant present in Court, or in the Court compound) did not inform the Judge of the presence of the defendant when the case was called on. This circumstance makes us doubt the truth of the allegation in the affidavit of the plaintiff that the defendant was present in the Court compound on the day of the hearing of the appeal. In a case very similar to the present case, namely, Sakina v. Gauri Sahai 24 A. 302 ; A.W.N. (1902) 68 a Bench of this Court entertained an appeal against an order of the Court below refusing to set aside an ex parte decree. The Court pointed out that personal service ought to be had in all cases where it is reasonably possible. We think that this is a very sound practice and that the provisions of the Code as to the service of process ought to be strictly observed. We allow the appeal, set aside the ex parte decree of the Court below and direct the Court to re-admit the appeal upon its original number in the file and to proceed to hear and determine the same on the merits, which should be carefully considered. The appellant will have his costs of this appeal.


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