1. The petitioner in this case was the decree-holder and opposite parties Nos. 1 and 2 and the father of opposite parties Nos. 3, 4 and 5 were the judgment-debtors in a rent decree. The decree was an ex parte one and was passed on 15th September 1934. In execution of that decree, the hold-ing in arrear was put up to sale on 19th February 1935. The sale was confirmed on 28th March 1935 and possession was taken through Court on 4th September 1925. On 9th June 1936, the opposite parties filed a joint application under Order 9, Rule 13, for having the ex parte decree set aside. On the same day, they filed an application under Section 174, Ben. Ten. Act, (corresponding to Order 21, Rule 90, Civil P.C.) for having the sale set aside. The learned Munsiff heard both applications together and dismissed them by a single judgment, holding them both to be time barred. The opposite parties then filed two separate appeals in the Court of the learned District Judge, and the learned Subordinate Judge who heard the appeals allowed them both by a single judgment and set aside the ex parte decree, and also the sale as having been held in execution of that decree. The petitioners have now obtained the present rule which is directed against the order of the learned Subordinate Judge setting aside the-ex parte decree and also the connected rule which is directed against the order setting aside the sale. The learned Munsiff did not at all go into the merits of either of the applications but dismissed them both on the sole ground that the applicants had failed to prove that the applications were within time. In particular, he did not record any finding as to whether the summonses had or had not been served, nor was it necessary for him-to do so in view of his findings regarding; the date of the opposite parties' knowledge of the decree and of the sale.
2. The learned Subordinate Judge too did not record any clear finding as to whether the summonses had or had not been duly served but having regard to the fact that after com-ing to the conclusion that the applications were in time, he proceeded to set aside the ex parte decree, it must, I think, be assumed that he was of opinion that the summonses had not been duly served, at any rate, in so far as opposite party No. 2 was concerned. The evidence is that the summons on opposite party No. 2 was served by affixing after its tender to and refusal by his brother the father of opposite parties Nos. 3 to 5. I do not propose to consider and decide whether or not the service thus effected was in order, but I should like to point out that, the learned Subordinate Judge does not, appear to have applied his mind to the question in the light of the ascertained facts and of the directions regarding the mode of service given in Order 5, Rules 15 and 17, as recently amended. If he had done so-it might well be that he would have come-to a different conclusion. The evidence-regarding the mode of service of the summons on defendant 2 is however very-relevant to the question of defendant 2's-knowledge. The evidence is, as already stated, that the summons was tendered to his brother, the father of defendants 3 to 5, who was himself a defendant, and that after being refused, it was hung up on the family dwelling house. Taking this together with the evidence to the effect that the summonses on opposite party No. 1 and on the father of opposite parties Nos. 3 to 5, were personally served, it is very hard to hold that opposite party No. 2's denial of the knowledge of the proceedings till a few days before he filed these applications, is at all worthy of credit. There is no denial on oath to the effect that summonses on opposite party No. 1 and on the father of opposite parties Nos. 3 to 5, were served personally and although the evidence is-that the three brothers were separate in mess and property, it is reasonably certain that they were living in the same house, or at any rate in the same place, and if one of them knew of the institution of the rent suit, it would clearly follow that the others must also have known thereof.
3. The learned Subordinate Judge appears to have completely overlooked the fact that opposite party No. 2 was not the sole applicant, and that the summonses on opposite party No. 1 and on the father of opposite parties Nos. 3 to 5, who had also joined as applicants, had been served personally. Apart from the question of service of summons, I find it quite impossible to believe that in the circumstances of this particular case the opposite parties should have remained in ignorance of a rent suit having been instituted and a decree obtained against them, inspite of the subsequent execution proceedings and especially in the face of the evidence regarding publication of sale proclamation, delivery of possession and realization of rent by the decree-holder from the tenant in occupation. The onus of 'proving that the application of the opposite parties for having the decree set aside was made within 30 days from the date of their knowledge was of course on the opposite parties, but the learned Subordinate Judge appears to have regarded the onus as having been shifted on to the petitioners by the bare denial of knowledge made by opposite party No. 2 in his evidence. There are several passages in the judgment of the learned Subordinate Judge which show that he regarded the onus as having been definitely thrown upon the petitioners by the denial of the knowledge made by the opposite party No. 2, and in view of these passages in the judgment, it cannot be contended that evidence having been led on both sides the question of onus was of no importance. The learned Subordinate Judge himself appears to have regarded it as being of very great importance, and the finding regarding the date of knowledge, is based upon the supposed failure of the opposite party No. 2 to discharge the onus cast upon him by the learned Subordinate Judge. The cumulative effect of the various errors and omissions in the judgment of the learned Subordinate Judge to which reference has been made above is to vitiate that judgment and to call for interference by this Court in the execution of its revisional powers. In my opinion, the learned Munsif was right in holding that the application for setting aside the ex parte decree was barred by limitation and the learned Subordinate Judge was wrong in taking the opposite view.
4. The result is that this rule is made absolute, the order of the learned Subordinate Judge is set aside in so far as the application under Order 9, Rule 13, Civil P.C. is concerned and the order of the learned Munsif dismissing the application is affirmed. The petitioners will get their costs in this Court the hearing fee being assessed at one gold mohur.
Civil Revision Case No. 1646 of 1987.
5. This rule is directed against an order of the Subordinate Judge of Bankura allowing an appeal by the opposite parties against the decision of the Third Munsif rejecting an application under Section 174, Ben. Ten. Act, (corresponding to Order 21, Rule 90, Civil P.C.) and reversing the Munsif's decision. The learned Subordinate Judge directed that the execution sale in question should be set aside but this order was based not on a consideration of the matter on its merits, but solely and directly in consequence of the decree, under which the sale was held, having been set aside under Order 9, Rule 13. The decree having been restored by this Court in the connected Rule No. 1645 of 1937, it follows that the order setting the sale aside cannot stand, and that the question of setting aside the sale will now have to be considered on the merits, on the footing that the decree, in execution of which the property was sold is a subsisting and valid decree. The rule is accordingly made absolute to this extent that the order of the learned Subordinate Judge setting aside the sale is itself set aside. In these circumstances the most convenient course would ordinarily be to send the case back to the learned Munsif's Court for retrial on the merits, but there is this difficulty in the way, that the learned Munsif has recorded a finding: on the question of limitation not only in respect of the application under Order 9, Rule 13, but also in respect of the application under Section 174, Ben. Ten. Act, and that the learned Subordinate Judge has not, in view of his. finding regarding the application under O.9, Rule 13, found it necessary to record any finding on the point of limitation in respect of the application under Section 174, nor has he at all considered the evidence bearing on the-question of limitation in respect of the latter application. It is therefore necessary to direct that the learned Subordinate Judge should re-hear the appeal in respect of the application under Section 174. If he agrees with the learned Munsif's finding that the application is barred by limitation, then there will be an end of the matter, but if he reverses that finding, it will be necessary for him to remand the ease to the learned Munsifs Court for decision on the merits. The rule is made absolute on these terms, but without costs.