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St. Mariammal Roman Catholic Church Vs. Lekshmanan Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 423 of 1957
Judge
Reported inAIR1959Ker297
ActsCode of Civil Procedure (CPC) , 1908 - Order 5, Rules 10 and 20A(2); Procedural Law
AppellantSt. Mariammal Roman Catholic Church
RespondentLekshmanan Nadar
Appellant Advocate Mathew Muricken, Adv.
Respondent Advocate S. Nilakanta Iyer, Adv.
DispositionRevision allowed
Cases ReferredSri Krishna Rice Mills v. Rajagopala Konar
Excerpt:
- - and in view of the chequered history of this litigation and the fact that several defendants including the respondent's own brother-in-law were contesting the suit for a long time and defendant 12 came upon the scone only after all of them failed and there was no other means to keep away the plaintiff-decree-holder from the fruits of his decree, it is not possible to accept defendant 12's interested testimony......civil revision petition is directed against an order allowing a petition for setting aside an ex parte decree. the suit was filed in the malabar year 13.24 for redemption of a mortgage. it was contested by defendants 2, 4, 11, 15. 20 and 22, but was ultimately decreed by the trial court on 3-1-1128. against the trial court's decree defendants 20 and 22 filed an appeal in the district court of trivandrum and that appeal was also dismissed. after the dismissal of the appeal the plaintiff-decree-holder deposited the mortgage amount in court and applied for delivery of possession of the property. then defendant 12 applied, on 29-3-1952 a. d., for the decree to be set aside on the ground that the summons issued in the suit had not been served on him and that he had obtained knowledge of the.....
Judgment:
ORDER

Kumara Pillai, J.

1. This Civil Revision Petition is directed against an order allowing a petition for setting aside an ex parte decree. The suit was filed in the Malabar year 13.24 for redemption of a mortgage. It was contested by defendants 2, 4, 11, 15. 20 and 22, but was ultimately decreed by the trial court on 3-1-1128. Against the trial court's decree defendants 20 and 22 filed an appeal in the District Court of Trivandrum and that appeal was also dismissed. After the dismissal of the appeal the plaintiff-decree-holder deposited the mortgage amount in court and applied for delivery of possession of the property. Then defendant 12 applied, on 29-3-1952 A. D., for the decree to be set aside on the ground that the summons issued in the suit had not been served on him and that he had obtained knowledge of the decree only on 27-8-1952t Defendant 12 is the brother-in-law of defendant 11 who was one of the defendants who contested the suit before the appeal.

2. The summons issued to him (defendant 12) through court was returned unserved and, therefore, a summons was sent to him by registered post also. That summons was returned with the endorsement made by the post peon that he had refused to accept the same. Defendant 12's case wasthat the post peon had not taken the summons to him. The plaintiff decree-holder contended that the summons was really taken by the post peon to defendant 12 and that the post peon's endorsement of refusal by him was proof of tender and service of the summons on him. Acting on the dictum in Sundaram v. Sesha Aiyar Mahadeva Aiyar, 1956 Ker LT 630: (AIR 1957 Trav Co 208) that even though a court may proceed to pass a preliminary decree ex parte on the strength of the endorsement of the post peon that the packet was refused by the defendant the decree should be set aside when the defendant comes and swears that it was neither tendered nor refused, the lower court held, on the strength of defendant 12's evidence, that the summons was not tendered or served on him. Consequently it set aside the decree, and from its order setting aside the decree the decree-holder has filed this revision petition.

3. The revision petition was first heard & disposed of by this court on 10-10-1957. By the order of 10-10-1957 the revision petition was allowed and tile order of the lower court vacating the ex parte decree was set aside, with the observation that the burden to prove that there was no proper service of summons was on defendant 12 and that his interested testimony was not sufficient to discharge that burden. At the hearing of 10-10-1957 defendant 12 was not present. Subsequently he applied to have the order of 10-10-1957 set aside on the ground that the notice in the civil revision petition had not been served on him. This application was allowed and the civil revision petition was restored to file and has now been re-heard.

4. Counsel for defendant 12 relies mainly upon the decision reported in 1956 Ker LT 630; (AIR 1957 Trav-Co 208) and the decision in Sri Krishna Rice Mills v. Rajagopala Konar, 1958-2 Mad LJ 143: (AIR 1958 Mad 522). In the latter case it was held that where postal service of summons to the defendant was taken out under O. V. R. 9(3) of C P. C. and the endorsement read that he had refused to receive the registered summons and no affixture was effected as required under Order V. Rule 17 of C. P. C. it must be held that there was no due service of summons in accordance with law and ex parte decree would, therefore, be liable to be set aside. Both these decisions do not make any reference to the amendments introduced to the Code of Civil Procedure by the Amendment Act, Central Act, 66 of 1956.

5. Section 14 of the amendment Act, Central Act 66 of 1956, provides;

'14. Amendment of the First Schedule. In the First Schedule to the principal Act (i) in Order V after Rule 20, the following rule shall be inserted, namely:--

'Service of summons by post,

20-A (1) Where, for any reason whatsoever, the summons is returned unserved, the Court may either in lieu of, or in addition to, the manner provided for service of summons in the foregoing rules direct the summons to be served by registered post addressed to the defendant or to his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain.

(2) An acknowlegment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service.'

6. In view of the express provision in the new Rule 20A(2) of Order V. C. P. C. that the endorsement by the postal employee that the defendant refused to make delivery may be deemed by the court issuing the summons to be prima facie proof of service, the burden is now cast upon the defendant to prove that there has been no proper service of the summons on him and that the endorsement made by the postal peon is false. Counsel for the respondent contended that as this amendment was made after the return of the summons in this case, Rule 20A(2) of Order V can have no application to the present case.

This contention also cannot be accepted for the enquiry on the defendant's application for setting aside the ex parte decree was conducted after the amendment was made, and the lower court passed the order on that application only 21-6-1957. The amendment was made in 1956; and it does not affect any substantive rights and only lays down a rule of evidence and procedure. That being so, it will govern all pending proceedings and should have been taken notice of by the lower court when it disposed of the defendant's application in June, 1957. In the AIR Commentaries on the Code of Civil Procedure, Vol. I, 1957 Edition at pages 10 and 11 it has been observed:

'Enactments dealing with procedure are always retrospective in the sense that their provisions' will apply to proceedings already commenced at the time of their enactment. The reason is that no one can have a vested right in forms of procedure.'

7. Certain other cases also decided on the lines of the dictum approved in 1956 Ker LT 630: (AIR 1957 Trav-Co 208) and 1958-2 Mad LJ 143: (AIR 1958 Mad 522) were referred to by the respondent's learned counsel during the course of his arguments. It is, however, unnecessary to refer to those cases in this order, for all of them were prior to the amendment of 1956 and in none of them has that amendment been noticed.

8. Barring the interested testimony of defendant 12 there is no evidence in this case to disprove the post peon's endorsement; and in view of the chequered history of this litigation and the fact that several defendants including the respondent's own brother-in-law were contesting the suit for a long time and defendant 12 came upon the scone only after all of them failed and there was no other means to keep away the plaintiff-decree-holder from the fruits of his decree, it is not possible to accept defendant 12's interested testimony. I therefore, hold that there was proper service of summons on defendant 12 before the suit was decreed. He has not given any other reasons for setting aside the ex parte decree. The Civil Revision Petition is, therefore, allowed and the lower Court's order allowing defendant 12's application for setting aside the ex parte decree is set aside and his application C. M. P. No. 9377 dated 20-8-1952, for setting aside the decree is dismissed. Parties will bear their costs.


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