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T. S. P. L. Palaniappa Chettiar Vs. A. S. Vedachala Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad381
AppellantT. S. P. L. Palaniappa Chettiar
RespondentA. S. Vedachala Mudaliar
Excerpt:
- .....said that they were 'points of fact and cannot be raised here.' the only other point raised by the subordinate judge's order related to limitation, etc., to the defendant's knowledge of the decree and the subordinate judge found it in his favour.3. the subordinate judge has now reconsidered both questions. on the first he finds that no summons was served on the defendant. one summons was issued, but it was not served on him. the court ordered fresh snmmons to go together with a registered notice. there is no evidence that a fresh summons was taken out, but it appears that a registered post-card was sent to the defendant by plaintiff's vakil informing him of the suit. this post-card was sent to a place where the defendant was not then residing and was received by him after he had been.....
Judgment:

Waller, J.

1. In this case an ex-parte decree passed in 1919 has been set aside on an application presented on 27th August 1923. It was originally set aside by an order passed on 28th July 1924. A revision petition was perferred and Wallace, J., directed the application to be re-heard. As I read his order what he required the Sub-Judge to decide was whether defendant otherwise knew of the suit through the registered notice and whether his denial that he got any acknowledgment can be believed.

2. As regards the other points raised he said that they were 'points of fact and cannot be raised here.' The only other point raised by the Subordinate Judge's order related to limitation, etc., to the defendant's knowledge of the decree and the Subordinate Judge found it in his favour.

3. The Subordinate Judge has now reconsidered both questions. On the first he finds that no summons was served on the defendant. One summons was issued, but it was not served on him. The Court ordered fresh snmmons to go together with a registered notice. There is no evidence that a fresh summons was taken out, but it appears that a registered post-card was sent to the defendant by plaintiff's vakil informing him of the suit. This post-card was sent to a place where the defendant was not then residing and was received by him after he had been declared ex parte. I am unable to see how it can be held that the receipt of such a notice is equivalent to the service of the summons which the law requires. I, therefore, agree with the Subordinate Judge's finding on the first point.

4. On the question of limitation the Subordinate Judge finds that the defendant had been informed by the plaintiff's vakil that a suit had been filed against him, that a preliminary decree had been passed and that an application for final decree was to be heard. The Subordinate Judge is of opinion that it has not been proved that he had knowledge of the decree more than 30 days before he made his application. This, as Wallace, J., pointed out, is a question of fact and I do not think that the Subordinate Judge was directed to re-consider it. As, however, he has considered it, I will deal with it. I think that, on the facts found and on the authorities cited, the defendant is not barred by Art. 164 of the Limitation Act. All that he was told was that some unknown plaintiff had obtained against him some sort of a decree in a suit, of which he was given no details. Article 164 requires that the party should have knowledge of the decree that has been passed against him. The only thing on which I have felt some doubt is whether such information as the defendant had should not have put him on enquiry. As to that, I agree with the Subordinate Judge that there was no obligation on his part to enquire further. The duty rather was on the plaintiff of giving him full information as to the litigation and the nature of the decree. I must decline to interfere. The Civil Revision Petition is dismissed with costs.


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