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R. Duraiswamy Iyer Vs. C.S. Balasundaram Iyer and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in94Ind.Cas.420
AppellantR. Duraiswamy Iyer
RespondentC.S. Balasundaram Iyer and anr.
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13 - limitation act (ix of 1908), schedule i, article 164--ex parte decree, setting aside of--service of summons, finding as to. - wallace, j.1. the district munsif has not decided whether 'summons was not duly served' as he was bound to do under article 164 of the indian limitation act. a mere assertion of his ignorance of the decree by the petitioner and acceptance of that by the court will not give the court jurisdiction to set aside the ex parte decree. it has to decide also whether the summons was not duly served. this order was, therefore, made without jurisdiction and is hereby set aside and the case sent back for fresh decision.2. costs upto date will abide the result. refund of court-fee on the civil revision petition is allowed.
Judgment:

Wallace, J.

1. The District Munsif has not decided whether 'summons was not duly served' as he was bound to do under Article 164 of the Indian Limitation Act. A mere assertion of his ignorance of the decree by the petitioner and acceptance of that by the Court will not give the Court jurisdiction to set aside the ex parte decree. It has to decide also whether the summons was not duly served. This order was, therefore, made without jurisdiction and is hereby set aside and the case sent back for fresh decision.

2. Costs upto date will abide the result. Refund of Court-fee on the civil revision petition is allowed.


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