Skip to content


Subramania Iyer and anr. Vs. N. Krishnaswami Naidu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in108Ind.Cas.753
AppellantSubramania Iyer and anr.
RespondentN. Krishnaswami Naidu and ors.
Cases ReferredMuhammad Sahib v. Alagappa Chettiar
Excerpt:
civil procedure, coda (act v of 1908), order ix, rule 18 - limitation act (ix of 1908), sch. i, article 164--due service of summons--ignorance of suit, whether' sufficient ground for nun-appearance. - .....case down to the lower court for a finding as to whether the two defendants were at the time of service living in one house, and if not, to which house did the process-server affix the process. the findings are that the defendants were living in different house's and that the process was affixed to each house, objections have been put into these findings. we can see no reason for not accepting the findings.2. in his affidavit in this petition to set aside the ex parte, decree, the 1st defendant stated that 2nd defendant was living in the village at the date of the service. in his evidence he stated that the 2nd defendant was in the village on that date. second defendant did not go into the witness box to say when he came to know of the suit or decree. obviously 2nd defendant has made.....
Judgment:

1. This appeal is against an order refusing to set aside an ex parte decree which was passed against the two defendants, the appellants on 13th March, 1924. Neither of the defendants were personally served. The final attempt to serve them was on 2nd February, 1924, at their houses. The return of the process-server is to the effect that as both were absent the process was affixed to their residence. As there seemed some doubt as to whether both were living in the same house we sent the case down to the lower Court for a finding as to whether the two defendants were at the time of service living in one house, and if not, to which house did the process-server affix the process. The findings are that the defendants were living in different house's and that the process was affixed to each house, Objections have been put into these findings. We can see no reason for not accepting the findings.

2. In his affidavit in this petition to set aside the ex parte, decree, the 1st defendant stated that 2nd defendant was living in the village at the date of the service. In his evidence he stated that the 2nd defendant was in the village on that date. Second defendant did not go into the witness box to say when he came to know of the suit or decree. Obviously 2nd defendant has made out no cause for in deference with the lower Court's order. His silence is sufficient admission that he was aware of the suit.

3. First defendant contended that he was absent in Kumbakonam at the time of the service of process and gave evidence that he was absent in Kumbakonam on certain days in January. February and March, 1924. The lower Court is Wrong in stating that he deposed that he went to Kum-bakonam in March only. But apart from that, the evidence is Wholly insufficient to establish that he was prevented by sufficient cause from not appearing when the suit was called on. In his chief examination there is only his vague and un-corroborated statement that he was (sic) in March. Though in cross examination he says he was absent in February also, he does not say how long after the 20th February, 1924, he returned home. He denies that any one informed him of the suit and does not explain how he came to know about it at all. In his affidavit filed with the petition to set aside the decree he says he was living in Kumbakonam but in his evidence he gives his address as Konerirajapuram and deposes only that he paid occasional visit's to Kumbakonam. We have found that the 2nd defendant knew of the suit. It is improbable that neither he nor the inmates of the 1st defendant's house informed the 1st defendant also of the suit, and the 1st defendant's vagueness as to whence he got information strengthens our view that he was aware of the suit all along.

4. The service effected on him was clearly ' due service.' The process-server made a bona fide effort to serve him personally more than once and was not successful. That being so, the 1st defendant has to show that he was prevented by sufficient cause from not appearing. He contends that he was ignorant of the suit and that ignorance is sufficient cause. We demur to the last contention; but as we find that he was not ignorant of the suit in time to appear. We need not consider at length the legal point as to whether ignorance is in itself sufficient cause. Ignorance is not a factor which would affect the dueness of the service: see Duraiswamy Iyer v. Balasundaram Iyer 94 Ind. Cas. 420; 23 L.W. 319; A. I. R. 1926 Mad. 558. Even substituted service is due service: see O. V, Rule 20, Civil Procedure Code. That when a summons has been duly served ignorance is not sufficient cause for not appearing also seems clear from the wording of Article 164 of the Indian Limitation Act. It is only when the summons was not duly served that ignorance of the decree saves limitation; that is, due service imports knowledge. A ruling to the opposite effect has been cited to us, that of a Single Judge of this Court in Muhammad Sahib v. Alagappa Chettiar 90 Ind Cas. 1042; 1926 48 M, L.J. 446; 29 L.W. 423; A.I.R. 1926 Mad. 31 but as at present advised we are not inclined to accept that view. In any event as we hold that the 1st defendant has not established that he was ignorant of the Suit, it is clear that this appeal cannot stand.

5. We, therefore, dismiss the appeal with costs.


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