Skip to content


K. Pugal Vs. P. Asoka - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1982)1MLJ303
AppellantK. Pugal
RespondentP. Asoka
Excerpt:
- .....on 20th december, 1974. he filed a petition i.a. no. 703 of 1976 under section 151, civil procedure code, to vacate the exparte preliminary decree and the order passed is the subject-matter of c.r.p. no. 1702 of 1980. the petitioner filed i.a. no. 704 of 1976 under section 151, civil procedure code, for setting aside the exparte order passed in final decree proceedings and the order passed against him is the subject-matter of c.r.p. no. 1703 of 1980. the petitioner filed a third application i.a. no. 72 of 1976 for setting aside the ex parte order passed against him in the application for appointment of a commissioner and the order passed against him is the subject-matter of c.r.p. no. 1704 or 1980. all these three civil revision petitions are heard together and disposed of.....
Judgment:
ORDER

P. Venugopal, J.

1. This civil revision petitioner in all these petitions is the first defendant in the suit. An ex parte preliminary decree was passedagainsthim on 20th December, 1974. He filed a petition I.A. No. 703 of 1976 under Section 151, Civil Procedure Code, to vacate the exparte preliminary decree and the order passed is the subject-matter of C.R.P. No. 1702 of 1980. The petitioner filed I.A. No. 704 of 1976 under Section 151, Civil Procedure Code, for setting aside the exparte order passed in final decree proceedings and the order passed against him is the subject-matter of C.R.P. No. 1703 of 1980. The petitioner filed a third application I.A. No. 72 of 1976 for setting aside the ex parte order passed against him in the application for appointment of a Commissioner and the order passed against him is the subject-matter of C.R.P. No. 1704 or 1980. All these three civil revision petitions are heard together and disposed of by a common order.

2. The petitioner appearing in person argued his case with commendable skill and ability and contended that as the suit summons were not accompanied by a copy of the plaint there is non-compliance of the mandatory provisions of Order 5, Rule 2, Civil Procedure Code, and as the preliminary decree passed is therefore, a nullity and without jurisdiction it is unnecessary for the petitioners to file a petition under Order 9, Rule 13, Civil Procedure Code, to set aside such a decree and the application has been filed under Section 151,'Civil Procedure Code, invoking the inherent powers of this Court to set aside the preliminary decree passed without jurisdiction and an application of this kind is rot governed by the provisions of the Limitation Act.

3. A statutory provision can be construed as a mandatory provision only when a penalty or a disability is provided for ncncomplaince of the provisions. Since no penalty or disability is provided for noncompliance of Order 5, Rule 2, Civil Procedure Code, it is only a directory provision and non-compliance of such a directory provision would not make the subsequent proceeding a nullity. It results only in an irregularity which is always curable. As n on compliance of Order 5, Rule 2 will not make a decree a nullity, the petitioner's remedy is only to set aside the decree on the ground that there has been no proper service of summons. The application filed by the petitioner under Section 151, Civil Procedure Code, is therefore, in effect and in substance one to set said the ex parte preliminary decree and against the dismissal of that petition only an appeal will lie to this Court and not a revision. So the civil revision petitions filed by the petition. erare converted into civil miscellaneous appeals by exercising the inherent powers of this Court and they are. disposed of a ccordingly.

4. Article 123 of the Limitation Act provides that the period of limitation is 30 days from the date of decree when there is due service of summons on the defendant. If there is ro due service of summons, the period of limitation is 30 days from the date when the applicant had knowledge of the decree. So the main: question to be considered is whether the petitioner has been duly served with suit summons before the ex parte preliminary decree was passed against him. Under Order 5, Rule 9, Civil Procedure Code as it stood at the relevant time, the Court is empowered to have the Summons sert by post for service on the defendent and if it 'is returned unserved, the Court may have the summons served through the officers of the Court. The mode of service of summons which was sent by post or through officers of Court is one and the same and is provided under Order 5, Rule 15, Civil Procedure Code. When the defendant is absent the mode of service provided under Order 5, Rule 15, Civil Procedure Code, is to serve on an agent empowered to accept service of summons on behalf of the defendent or to serve en any adult member, of the family residing with the defendant. In the instant case, the summons sent through post was served on one Kamalase-karan who is admittedly not an agent empowered to accept service of summons1 on behalf of the defendant. So the summons have not been duly served in the manner provided under Order 5, Rule 15, Civil Procedure Code. Secondly under Order 5, Rule 2, Civil Procedure Code, the summons; should be accompanied by a copy of the plaint. In the instant case, the summons sent through post was admittedly not accompanied by a copy the plaint. The service of summons on the defendant without a copy of the plaint is not lega 1 service as contempltated under the provisions of the Civil Procedure Code. As there has been no proper service of summons on the; first defendant-petitioner, the period of: limitation for setting asside the ex parte) decree passed against him commenced from the date when he had knowledge of the decree. The question when the first defendant-petitioner came to have knowledge of! the ex parte preliminary decree passed; against him has not been properly adverted' to or considered by the lower Court.

5. The order passed by the lower Court is accordingly set aside and the case is remitted back to the file of the trial Court for considering the question as to when the petitioner came to have knowledge of the ex parte preliminary decree passed against him and dispose of the application according to law. The trial Court is directed to dispose of the other two applications, namely, I.A. No. 704 of 1976 and I.A. No. 539 of 1978 by considering each one of them independently and on its own merits. There is no order as to costs.


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