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R.M.T.S.S. Dhanasekaran Vs. State Bank of India Through Its Agent - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ271
AppellantR.M.T.S.S. Dhanasekaran
RespondentState Bank of India Through Its Agent
Cases ReferredSyed Muahnmad Sahib v. Alagappa Chettiar
Excerpt:
.....the said two applications for setting aside the ex parte preliminary decree as well as the ex parte final decree on the ground that he was not personally served with the summons in the suit and notice in the final decree proceedings, and that he became aware of the proceedings only on 1st july, 1975 through one veerabadran, a friend of the appellant, who came to know about the proceedings from the publication in 'malai murasu'.3. the said two applications for setting aside the ex parte preliminary decree and the final decrees were resisted by the respondent (plaintiff) on the ground that the petitioner had sufficient notice of the proceedings, but evaded summons for reasons best known to himself, that he came to know of the entire proceedings only on 1st july, 1975 was not true and..........been informed by the official assignee and therefore they should be taken to have knowledge of the suit proceedings.4. the court below by a common judgment held that a perusal of the notes paper in the suit showed that after due publication made the defendants 1 to including the appellant were set ex parte, that the preliminary decree came to be passed after hearing the court-guardian of the fifth defendant and the official assignee, the six defendant, that even, in the final decree proceedings due notice was sent to the appellant, and other defendants that the court after satisfying itself about the sufficiency of the notice declared the appellant ex parte, and that therefore, it cannot be stated that the appellant had no sufficient notice of the proceedings. the lower court also took.....
Judgment:
ORDER

G. Ramanujam, J.

1. These two appeals have been filed by the third defendant in O.S. No. 97 of 1972 on the file of the Subordinate Judge's Court, Dindigul, against the order dismissing his applications viz., I.A. Nos. 660 and 668 of 1975, for setting aside the ex parte preliminary decree dated 31st July, 1973 and the ex parte final decree dated 11th January, 1974.

2. The respondent bank filed a suit to recover a sum of Rs. 5,76,517-85 said to be due on a mortgage from the defendants 1 to 5. The first defendant is a firm and defendants 2 to 4 are the partners and the minor 5th defendant has been admitted to the benefits of the partnership. The sixth defendant is the Official Assignee, Madras, in charge of the estate of defendants 2 to 4 who have been adjudicated as insolvents. In the suit, no personal service of summons was effected on the third defendant, but summons had been served by substituted service and by publication in 'Malai Murasu' newspaper. The 5th defendant, a minor represented by a Court-guardian, and the 6th defendant, the Official Assignee, alone appeared at the trial, and as defendants 1 to 4 remained absent, they were set ex parte and an ex parte preliminary decree came to be passed on 31st July, 1973. Subsequently final decree proceedings were initiated and in those proceedings also due notice was sent to all defendants. So far as the third defendant is concerned, he has been served by affixture and such service has been held to be sufficient. Thereafter, he was set ex parte and final decree has been passed on 11th January, 1974. There after the respondent took steps to brin the mortgaged property to sale. At the stage on 17th July, 1975 the third defendant (appellant herein) filed the said two applications for setting aside the ex parte preliminary decree as well as the ex parte final decree on the ground that he was not personally served with the summons in the suit and notice in the final decree proceedings, and that he became aware of the proceedings only on 1st July, 1975 through one Veerabadran, a friend of the appellant, who came to know about the proceedings from the publication in 'Malai Murasu'.

3. The said two applications for setting aside the ex parte preliminary decree and the final decrees were resisted by the respondent (plaintiff) on the ground that the petitioner had sufficient notice of the proceedings, but evaded summons for reasons best known to himself, that he came to know of the entire proceedings only on 1st July, 1975 was not true and that as a matter of fact, the appellant and the defendants 1, 2 and 4 had been informed by the Official Assignee and therefore they should be taken to have knowledge of the suit proceedings.

4. The Court below by a common judgment held that a perusal of the notes paper in the suit showed that after due publication made the defendants 1 to including the appellant were set ex parte, that the preliminary decree came to be passed after hearing the Court-guardian of the fifth defendant and the Official Assignee, the six defendant, that even, in the final decree proceedings due notice was sent to the appellant, and other defendants that the Court after satisfying itself about the sufficiency of the notice declared the appellant ex parte, and that therefore, it cannot be stated that the appellant had no sufficient notice of the proceedings. The lower Court also took the view that the appellant purposely kept himself out of the Court for reasons best known to himself and that the cannot now complain that the plaintiff has obtained an ex parte decree fraudulently.

5. In this appeal it is contended on behalf of the appellant that admittedly he was not personally served in the suit or in the final decree proceedings, that he became aware of the proceedings only on 1st July, 1975 through a friend of his and that having regard to the huge claim made in this suit, he should in the interest of justice, be given an opportunity to put forward his defence.

6. The learned Counsel for the respondent submits that in this case there has been a due service of summons in the suit, and of notice in the final decree proceedings, on the appellant and that therefore he is not entitled to seek to set aside the ex parte preliminary decree as well as the final decree. According to the learned Counsel, even if there had been no personal service on a party if the Court considers the service to be a sufficient service, then the service should be taken to be a due service as contemplated under Order 9, Rule 13, Civil Procedure Code, in which case the appellant cannot invoke the said provision for setting aside the ex parte decrees. In support of the said submission, the learned Counsel for the respondent refers to the decision reported in Doraiswami Ayyar v. Balasundaram Ayyar 52 M.L.J. 477 : 102 Ind.Cas. 243 : A.I.R. 1975 Mad. 507, wherein Wallace, J., has held that the word 'duly' in Order 9, Rule 13, Civil Procedure Code is not equivalent to 'personally' that if the trial Court is satisfied that the substituted service effected is a sufficient service, then it should be taken to be a due service, and that such service is as effectual as if it had been made on a defendant personally. That was also a case where the defendant filed an application to set aside the ex parte decree on the ground that he was not personally served in the suit and that therefore he is entitled to file an application for setting aside the ex parte decree within 30 days from the date of knowledge of the decree as prescribed in Article 164 of the Limitation Act. Wallace, J., held that on the facts of that case where the trial Court was judicially satisfied that the conditions laid down in Order 5, Rule 20, Civil Procedure Code, were present to treat the service as ''due service' the defendant was not entitled to set aside the ex parte decree merely on the basis that there is no personal service.

7. It is not in dispute that the appellant in this case was not personally served either at the stage of the suit or at the final decree proceedings. At the stage of the suit he has been served by substituted service by publication in a newspaper and at the final decree proceedings he had been served by affixture. Both the services had been treated as sufficient service by the Court below. Therefore, it should be taken that the defendant was duly served as per the provision of Order 5, Rule 20, Civil Procedure Code.

8. It appears however that nonetheless the appellant can seek to set aside the ex parte decree on the ground that the was prevented by sufficient cause front appearing when the suit was called or when the final decree was passed. Order 9. Rule 13, Civil Procedure Code, sets out two alternative grounds for having the ex parte decree set aside, in. an application under Order 9, Rule 13, Civil Procedure Code. The appellant can satisfy the Court that: (1) the summons was not duly served ; or (2) he was prevented by any sufficient cause from appearing when the suit was called on for hearing. He could request the Court to set aside the ex parte decree passed against him on any one of the two grounds. Even if there has been a proper and sufficient service at the stage of the suit and at the stage of the final decree proceedings, if he satisfies the Court that he was prevented by sufficient cause from appearing in Court he can seek the setting aside of the ex parte decree. In this case the cause shown by the appellant for not being present at the time of the hearing of the suit, or the final decree proceedings is that he was not personally served in those proceedings as such he was not aware of the proceedings. In Syed Muhammad Sahib v. Alagappa Chettiar : (1925)49MLJ445 , there was service of summons in the suit by affixture on the outer door of the defendant's house. The trial Court proceeded to decree the suit ex parte declaring the said service by affixture as sufficient service. The defendant thereafter filed an application to set aside the ex parte decree under Order 9, Rule 13, Civil Procedure Code, Ramesam, J., in that case was of the view that even if there has been a proper service of the summons, the defendant can show sufficient cause for his non-appearance as an alternate ground for invoking Order 9, Rule 13, Civil Procedure Code, provided such an application is not barred by limitation and that though for the purpose of limitation the defendant's knowledge of the suit will be material, a vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular sum. Therefore, if the appellant is shown to have no knowledge of the suit or the final decree proceedings on the date of the hearing, he can be taken to have shown sufficient cause for non-appearance, so as to enable him to invoke Order 9, Rule 13, Civil Procedure Code.

9. Learned Counsel for the respondent would, however, point out that the Official Assignee who is the sixth defendant has been duly served and he, in fact took part in the suit as well as in the further proceedings, and that the Official Assignee has duly intimated to all the defendants the progress of the suit at various stages and therefore the appellant should be deemed to have knowledge of the suit and other proceedings from the Official Assignee. But the communications of the Official Assignee filed before the Court are only copies of letters said to have been sent to the appellant, and there is no evidence to show that those communications actually reached him. In this case the appellant has said that he has not received any communication sent by the Official Assignee intimating about the progress of the suit or the final decree proceedings. The learned Counsel for the respondent further points out that though the appellant has come forward with a case that he became aware of the suit and the proceedings only on 1st July, 1975 through his friend, Veerabadhran, the said Veerabadhran has not been examined. The learned Counsel states that even as per the evidence of the appellant he met Veerabadhran in May --June of 1975 when he was informed a bout the proceedings and he immediately filed the applications for setting aside the ex parte decrees, and that therefore he should have filed the application for setting aside the decree within 30 days from the date of knowledge of the proceedings, but the application had actually been filed only on 17th July, 1975. As pointed out by Ramesam, J. in Syed Muahnmad Sahib v. Alagappa Chettiar : (1925)49MLJ445 a vague knowledge about certain proceedings is not enough for limitation to operate and that a specific knowledge that a particular decree has been passed against him in a particular Court and for a particular sum has to be attributed to the appellant so as to say that he had such knowledge 30 days before the date of the applications.

10. Having regard to the fact that in this case all the summons and notices from the Court had been sent only to Kamuthi address and not to Dindigul address where the appellant is actually residing, his non-appearance before the Court on the date of trial can be taken to be for a sufficient cause.

11. In this view the appeals have to be allowed and they are accordingly allowed. The ex parte preliminary decree as well as the final decree will stand set aside and the suit will be restored to file, so far as the third defendant is concerned, for fresh disposal in accordance with law. Having regard to the fact that the suit is of the year 1972, the lower Court is directed to dispose of the suit within two months from the date of receipt of the records by that Court. There will be no order as to costs in these appeals.


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