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Kanappa Chetty and ors. Vs. Sugan Chand Daga - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.375
AppellantKanappa Chetty and ors.
RespondentSugan Chand Daga
Excerpt:
civil procedure code, (act v of 1908), order xlix, rule 1 - original side, rules of calcutta high court, ch. viii, rules 14, 24a--service of process--service through village headman, legality of. - .....the affidavit of service of the original notice is by k.p. raju naidu who says that he is the village headman of village sirukunapatti in the district of ramnad in, the presidency of madras. he then goes on to state what he did and assuming that these statements are accepted, as to which i say nothing, on the face of it the affidavit is impeachable. the affidavit purports to have been sworn by this village headman before a gentleman who signs as a member of the ramnad district board and the taluk board. with regard to the power of this gentleman to administer the oath, that only affects the matter of proof of service and does not go to the root of the whole matter, but it is argued that the village headman is not a proper person to serve the summons.4. service of process through.....
Judgment:

Buckland, J.

1. This is an application to set aside an order of 18th May, 1925 giving the assignee-of a decree made on the 8th March, 1912, liberty to execute the decree and for transmission of the decree to a Court in the Madras Presidency for the purpose.

2. The applicant states he was never served with notice of that application and he relies on his own petition verified by the affidavit of K.N.M. Kasi Viswanath Pillai as well as the affidavits of other persons. I may say at once that I do not decide upon the facts or any point argued or touched upon in the affidavits other than that to which I shall presently refer, not that they have been abandoned, but because the point upon which I propose to dispose of this matter appears to be conclusive and entirely sufficient for the purpose.

3. The affidavit of service of the original notice is by K.P. Raju Naidu who says that he is the village headman of village Sirukunapatti in the District of Ramnad in, the Presidency of Madras. He then goes on to state what he did and assuming that these statements are accepted, as to which I say nothing, on the face of it the affidavit is impeachable. The affidavit purports to have been sworn by this village headman before a gentleman who signs as a member of the Ramnad District Board and the Taluk Board. With regard to the power of this gentleman to administer the oath, that only affects the matter of proof of service and does not go to the root of the whole matter, but it is argued that the village headman is not a proper person to serve the summons.

4. Service of process through another Court need not be considered. Otherwise' service of process issued by this Court is governed by Order XLIX, Rule 1 of the C.P.C., and Ch. VIII, Rule 14 and Rule 24A of the Rules of this Court as regards process other than summonses to defendants, writs of execution and notices to respondents. Outside the local limits of the jurisdiction of this Court such processes as may be served by attorneys are usually served either by their employing somebody for the purpose or by registered post under Rule 24A. In this particular matter, service purports to have been effected by none of the recognized means.

5. There is no provision of law so far as I am aware for handing the notice to a village headman to serve upon a party resident in his village. It has been argued that an attorney may employ the village headman. The special employment of an individual does not seem to me what is contemplated by Order XLIX, Rule 1 of the Code which might be deemed to refer to persons in the attorney's regular service, but I need, not decide that, because I enquired of the attorney through learned Counsel whether or not the attorney was prepared to say that he did employ the village headman, and the answer that I received was that the attorney told his client to do it through the village headman which I was informed is the common practice in the Madras Presidency.

6. In these circumstances, I am of opinion that there was no service upon the defendant that I may recognise and apart from the facts there was, therefore, no service as contemplated by law and the applicant is entitled to the order.

7. There will be an order in terms of the summonses.


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