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Murugayyan Kangiar Vs. Marudayyammal - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Reported in(1956)2MLJ86
AppellantMurugayyan Kangiar
RespondentMarudayyammal
Excerpt:
- .....he filed an application under order 9, rule 13 of the code of civil procedure to set aside the ex parte decree passed against him. he alleged that he came to know of the decree only on 20th september, 1952.2. the ground on which he based his application to have the ex parte decree against him set aside was that summons was not duly served on him. the material facts, as to which there is practically no dispute, are that the summons was sent to him by registered post and was returned with the endorsement of the postman 'refused'. the question is whether there was on these facts sufficient service in law. postal service of summons was introduced by sub-rule (3) of rule 9 of order 5, which runs as follows:where the defendant resides in india whether within the jurisdiction of the court in.....
Judgment:

P.V. Rajamannar, C.J.

1. The petitioner is the defendant in a suit O.S. No. 136 of 1952 in the Court of the District Munsiff of Tiruvaiyaru. The decree was passed against him ex parte on 31st July, 1952. On 29th September, 1952, he filed an application under Order 9, Rule 13 of the Code of Civil Procedure to set aside the ex parte decree passed against him. He alleged that he came to know of the decree only on 20th September, 1952.

2. The ground on which he based his application to have the ex parte decree against him set aside was that summons was not duly served on him. The material facts, as to which there is practically no dispute, are that the summons was sent to him by registered post and was returned with the endorsement of the postman 'refused'. The question is whether there was on these facts sufficient service in law. Postal service of summons was introduced by Sub-rule (3) of Rule 9 of Order 5, which runs as follows:

Where the defendant resides in India whether within the jurisdiction of the Court in which the suit is instituted or not, the Court may direct the proper officer to cause summons under this chapter to be addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain and sent to him by the the registered post prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant shall be deemed to be sufficient proof of service of such summons.

3. In the present case, admittedly, there was no acknowledgment purporting to be signed by the petitioner. The endorsement was that he had refused to receive the registered summons. There is no specific provision as to the procedure to be followed when a defendant refused to receive a summons sent to him by registered post. Probably Order 5, Rule 17 of the Code, was intended also to serve a case where the defendant refused to receive the summons sent by registered post and to sign the acknowledgment thereof. The words in Rule 17 'Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment' are sufficiently wide to include the case of a defendant refusing to sign the acknowledgment of receipt of a summons sent to him by registered post. Admittedly there was no affixure of a copy of the summons as required by Rule 17 of Order 5. It must therefore be held that there was no due service of summons in accordance with law. The petitioner was therefore entitled to have the decree passed against him ex parte set aside.

4. The application was admittedly filed after the expiry of 30 days from the date of the decree. Under Article 164 of Schedule I of the Limitation Act, the period of 30 days can be computed either from the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. I have already found that the summons was not duly served in this case. Therefore, time should be computed from the date when the applicant had knowledge of the decree. According to the defendant he had knowledge only a few days before he filed the application. What was relied on by the plaintiff was that even before the passing of the decree, the defendant must have known about the pendency of the suit, because the postman told him that the summons came from the Munsiff's Court. Assuming that the defendant knew that there was a suit pending against him, that does not necessarily mean he was aware of the fact that a decree had been passed against him. The statement of the petitioner-defendant that he became aware of the decree within thirty days of the date of the application stands uncontradicted and undisproved. The application must therefore be held to be within time.

5. The Civil Revision Petition is allowed, the orders of the Courts below are hereby set aside and the application made by the petitioner to set aside the ex parte decree passed against him is ordered. There will be no order as to costs.


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