Skip to content


Sankaralinga Mudali Vs. Rathnasabapathi Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ58
AppellantSankaralinga Mudali
RespondentRathnasabapathi Mudali and anr.
Cases ReferredBhomshetti v. Umabai I.L.R.
Excerpt:
.....showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - nor can we agree with the advocate-general's contention that even if an appeal lie and the ex parte decree is set aside, the proceedings will be futile, inasmuch as the order passed under section 101 could not be interfered with in an appeal like the present. if the information given to the serving officer leads him to think that the defendant is only to be absent for a short time, it may well be that the serving officer should, if possible, wait and endeavour to effect personal service, bhomshetti v......(appellant) under section 101, civil procedure code, and as no appeal was made against the ex parte decree so as to enable the appellant to impeach that order, the appellant was not entitled to make an application under section 108, raising the same question as had been already decided against him under section 101, nor should he be now allowed to appeal against the order made against him under section 108.2. this contention, at first sight, may seem to be reasonable, but having regard to the very wide words 'in any case' used in section 108, we are unable to hold that the defendant was not entitled to make an application under section 108. that being so, he was under section 588 entitled to prefer the present appeal. nor can we agree with the advocate-general's contention that even.....
Judgment:

1. The Advocate-General raises a preliminary objection to the effect that inasmuch as an order was passed against the 2nd defendant (appellant) under Section 101, Civil Procedure Code, and as no appeal was made against the ex parte decree so as to enable the appellant to impeach that order, the appellant was not entitled to make an application under Section 108, raising the same question as had been already decided against him under Section 101, nor should he be now allowed to appeal against the order made against him under Section 108.

2. This contention, at first sight, may seem to be reasonable, but having regard to the very wide words 'in any case' used in Section 108, we are unable to hold that the defendant was not entitled to make an application under Section 108. That being so, he was under Section 588 entitled to prefer the present appeal. Nor can we agree with the Advocate-General's contention that even if an appeal lie and the ex parte decree is set aside, the proceedings will be futile, inasmuch as the order passed under Section 101 could not be interfered with in an appeal like the present. We think that, if under Section 108 an ex parte decree is set aside, this necessarily carries with it a reversal of any order previously made under Section 101 refusing to allow the party to appear and defend the suit. To hold otherwise would lead to an absurdity.

3. Turning now to the merits, the question whether the serving officer 'cannot find' the defendant within the meaning of Section 80, is one which must be determined with reference to the circumstances of each case. If the information given to the serving officer leads him to think that the defendant is only to be absent for a short time, it may well be that the serving officer should, if possible, wait and endeavour to effect personal service, Bhomshetti v. Umabai I.L.R. 21 B., 223. Otherwise, and if there is no person who can be served in the absence of the defendant, we see nothing improper in the serving officer affixing the summons to the outer-door of the defendant's ordinary residence. In the present case, the serving officer's return shows that, according to the information given to him, there was no prospect of his being able to serve the appellant personally within a reasonable time. He was, therefore, justified in affixing the summons to the door of the house, and the District Judge was justified in accepting it as a sufficient service.


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