G.K. Misra, J.
1. Plaintiff filed the suit on the allegation that the defendant borrowed Rs. 200/- from her on the basis of a registered Kentakabala (Ex. 1) dated 3-11-59 on condition that he would redeem the mortgage within two years. Despite repeated demands the money was not paid. On 9-4-63 an ex parte preliminary decree was passed. The decree directed the defendant to pay the decretal dues within three months failing which his right to redeem the mortgaged property would be foreclosed and the plaintiff would be in possession of the property after the decree was made final. During the final decree proceedings, notice was issued to the defendant to show cause why the decree should not be made final. On 15-4-65 defendant appeared and filed an application for setting aside the ex parte decree which was registered as a misc. case. On 22-4-65 further proceedings in the final decree was stayed until disposal' of the misc. case. The misc. case was dismissed on 31-1-66 and against this order a miscellaneous appeal was filed which was dismissed by the learned District Judge. The civil revision has been filed by the defendant against the appellate order.
The course of events subsequent to the dismissal of the misc. case may be traced out. Stay of the final decree proceedings had been vacated and the case was put up to 11-2-66 and was adjourned to 16-2-66. It was ordered on that date that advocates of the parties were to be informed and then the case was to be put up. The case was adjourned to various dates. The advocate for the defendant was not informed as would appear from orders dated 21-2-66, 28-2-66 and 15-3-66.Though the advocate for the defendant was not informed, the Court passed an order on 25-3-66 that the defendant was absent on repeated calls. He was set ex parte. Plaintiff's lawyer was heard and the decree was made final. Thus the final decree was passed without notice to the defendant's advocate despite clear direction to the contrary. We are not, however, concerned with this aspect of the matter in this revision. But it is indicated only to show how the directions were not followed bv the learned Munsif doing utter injustice leading to loss of confidence in the judiciary as a whole.
2. The main question for consideration is whether there was sufficient cause for the absence of the defendant and the ex parte decree is liable to be set aside.
As has already been stated, the ex parte decree was passed on 9-4-63 and the application for restoration was filed two years after on 16-4-65. Under Article 164of the Indian Limitation Act (Act IX of 1908), the defendant can apply for setting aside an ex parte decree within thirty days from the date of the decree, or, where the summons was not duly served, within thirty days from the date of his knowledge of the decree. In order to get over limitation, the defendant must establish that summons was not duly served on him and he filed the application on 15-4-65 within thirty days from the date of his knowledge of the decree. According to him, he had knowledge of the decree when he was served with notice in the final decree precedings and within thiry days he filed the application.
The only question for consideration, therefore, is whether the summons was not duly served on him. Essentially this is a question of fact and dues not relate to the domain of jurisdiction and is not to be ordinarily interfered with.
3. Mr. Misra, however, strongly contends that the Courts below exercised their jurisdiction illegally in committing serious errors of record and in ignoring important matters which would have influenced their decisions to take a view in favour of the defendant,
4. As appears from the records, summons was offered to the petitioner by Process Server (O. P. W. 3) on 28-11-62. Shridhar Mohanty (O. P. W. 1) is indicated ' therein as the identifier. One Bira-bar Das (not examined) is shown as a witness to the service. Muli Mohanty (P. W. 1) is shown as another witness to the service of summons. The Process Server (O. P. W. 3) states that Muli Mohanty (P. W. 1) did not sign the process. The service return bears the signature of Muli. Yet it was not put to him in cross-examination. He, however, denies to have been a witness to the service of summons. The bearing of these facts has not been considered by the lower appellate Court.
5. O. P. W. 1 and Birabar Das are the agents of the plaintiff: O. P. 1 himself admits it. There is, therefore, no independent witness on behalf of the decree-holder (plaintiff). The learned lower appellate Court has not also taken this fact into consideration.
6. Another important factor is that the defendant was not residing in the village and was serving as a motor driver. The witnesses for the opp. party also accept the position that the defendant was mostly staying out to learn driving. O. P. W. 1 stated thus -
Till now I do not know what the defendant does and how he earns his livelihood. But he wanders outside. Defendant remains outside and occasionally comes to the village when we meet.
O. P. W. 4 (postal peon) is the solitary witness to the refusal of the letter by the defendant. He stated -
When 1 tendered the registered letter Ananta Misra was learning driving and he used to come to Cuttack from his village. He used to learn driving about 2 years ago.
Despite this statement, the plaintiff (O. P. W. 2) said -
The petitioner was all along staying in the village, but since last two months he is working outside.
This is a lie. The plaint ease itself was that the loan was incurred for meeting the expenses of learning driving in 1959, Defendant's case is that he went to Koraput for service after learning driving. All these facts have not been considered by the learned District Judge and he exercised jurisdiction with material irregularity. I have indicated these facts only to show how perfunctory was the judgment of the learned lower appellate Court in failing to bestow attention on crucial factors in evidence which might lend some probability to the defence version that no summons was served on him. The order of the learned District Judge cannot be sustained and must be set aside. I do not propose to hear the case as a first appeal. It would be better that the case be reheard by the lower appellate Court. I would accordingly remand the case to the lower appellate Court for fresh disposal after giving the parties full opportunities of being heard.
7. If the learned District Judge comes to the conclusion that summons or the postal notice was not duly served, the ex parte decree is bound to be set aside. If the ex parte decree fails, the final decree based on it must necessarily fail. There are ample authorities for this proposition.
8. The learned District Judge is accordingly directed to go into the sole question whether the summons was duly served on the defendant. If he comes to the conclusion that summons was not duly served, he would set aside both the preliminary and final decrees and direct the case to be tried from the stage where it becomes ex parte.
9. In the result, the judgment of thelower appellate Court is set aside and thecase is remanded to it for disposal in accordance with law and the observationsmade above. The civil revision is allowed.Costs would abide the result.