1. The defendant is the petitioner herein. The revision petition arises out of proceedings seeking to set aside an ex parte decree passed against him in O.S No. 414 of 1963 on the file of the Additional District Munsif, Padmanabhapuram.
2. The petitioner's contention is that he is a defendant in O.S No.414 of 1963, that the respondent filed the suit on an alleged promissory note dated 23-12-1960, that he did not execute the promissory note, that he did not receive any money thereunder, that the respondent obtained an ex parte decree on 7-1-1964, without his knowledge of the suit, that he had knowledge of the suit only on 24-8-1969, when a process was served on him from District Munsif's court. Kuzhithurai, in the execution proceedings, that he did not receive that suit summons, that he did not refuse to receive the suit summons, that the endorsement of the post man on the letter enclosing the suit summons that the defendant refused to receive summons is false, that there is no proper service of summons. that there is no affixture of summons either by the process-server or by the post peon, that he had no knowledge about the case or the decree till 34-8-1969, and that the present application, out of which the present revision petition arises, was filed soon after.
3. The respondent-plaintiff filed a counter contending that the defendant was fully aware of the decree passed in the case, that summonses were sent to him through post as per the order of Court, that the defendant refused to accept the summons sent through post, that the defendant borrowed Rs. 1200 from the plaintiff and executed a promissory note therefor in his own hand writing and that there is no sufficient ground to set aside the ex parte decree and restore the suit to file.
4. The trial Court dismissed the application holding that the defendant when he refused to receive the suit summons Ex. B 1, must be deemed to have knowledge of the suit and further that when he gave evidence in a criminal case, C.C No. 3247 of 1968, on the file of the Sub Magistrate, Eraniel, he had admitted knowledge of the suit.
5. The defendant filed C.M.A 19 of 1970 before the Subordinate Judge, Padmanabhapuram. The learned Judge while referring to the decision in Sri Krishna Rice Mills v. P. Rajagopala Konar, : (1958)2MLJ143 sought to distinguish that case on the ground that the summons in that case was not taken to the defendant direct but to his manager who refused to receive the summons and that there is no evidence in that case that the manager told the defendant about the refusal to receive the suit summons, and consequently, that decision has no application to the facts of the present case.
6. The present revision petition is filed against the order of the learned Subordinate Judge in C.M.A 19 of 1970.
7. The contention of the learned counsel for the defendant petitioner is that the summons in the suit has not been duly served, That the defendant had no knowledge of the suit and that the proceedings in the suit have to be reopened. This contention is well-founded. In my view, the ground on which the learned appellate Judge sought to distinguish the decision in : (1958)2MLJ143 is not sound. From the circumstances that the summons was refused, knowledge of the suit in which was refused, knowledge of the suit in which the summons was issued cannot be presumed. It is unnecessary to refer to the decisions on the point. I may, however, refer to the decision of Rajamannar, C.J in Murugayyana Kongiar v. Marudayyammal, : (1956)2MLJ86 in this connection. In the instant case the summons was not duly served in accordance with law and the procedure under O.5, R. 17, Civil P.C was not followed. I am of opinion that the defendant was not duly served and the petitioner is entitled to have the ex parte decree passed against him set aside.
8. The revision petition, is therefore, allowed and the matter is remitted to the District Munsif of Padmanabhapuram. Who will take it on his file and proceed to dispose of the suit in accordance with the law after permitting the defendant to file his written statement. The costs of this revision petition will abide the result.
9. Petition allowed.