GANGA RAMY Vs. KHIALA RAM BANSI LAL

JUDGEMENT

(1.) This Second Appeal has been filed by one Ganga Ram, a judgment.debtor, against the jadgment of the District Judge, Mahasu and Kinnaur Districts, Himachal Pradesh, dated 20th December, 1966, in C M.A.No 37-M/l4 of 1968. whereby the District Judge confirmed the order of the Senior Subordinate Judge, Mahasu District, Simla, dated 19th March, 1966, in application No. 5/6 of 1965 on his file. The said application was filed by the appellant herein, Ganga Ram, under Order 9 rule 13 and section 151 of the Code of Civil Procedure, for setting aside an ex parte decree, dated 14th November, 1962, passed against him by the Court of the Subordinate Judge, Rampur.

(2.) The fact? which gave rise to the filing of this aforesaid application are as follows. The respondent herein Messrs Khiali Ram Bansi Lall, filed a suit against the appellant herein in the Court of the Subordinate Judge Rampur, on 2Srd April, 1955, for rendition of accounts. The appellant (defendant) filed his written statement on 22nd November, 1955, and issues were framed on 2nd January, 1956. On 24th July, 1959, a preliminary decree was passed by the learned Subordinate Judge in favour of the respondent (plaintiff) firm against the appellant (defendant). By the said preliminary decree it. was ordered that the appellant (defendant) should render accounts, and that a Commissioner be appointed to look into the accounts and to determine the amount due to the respondent (plaintiff) firm from the appellant (defendant). The appellant (defendant) filed an ar)p3al against the esaid preli minary decree in the Court of the District Judge, Mahasu. the appeal was dismissed on 31st May, 1901. The appellant 'defendant) preferred a Second Appeal to the Court of the Judicial Commissioner. On an application filed by the appellant herein (defendant), the learned Judicial Commissioner passed an order on 8th December, 1961 stiying; the passing of the final decree, but directing that in other respects the proceedings in the lower Court might continue. By his judgmenr dated 5th May, 1932, the learned Judicial Commissioner partly allowed the Second Appeal, and modified the preliminary decree passed by the trial Court to the extent that the appellant herein (defendarnt) was held not liable to render accounts regarding certain amounts of commission in respect of timber scantlings.

(3.) After the disposal of the Second Appeal in the manner mentioned above, the records of the case were sent back to the Court of the Subordinate Judge, Rampur, in or about the month of July, 1962. On 13th Jaly, 1962, the learned Subordinate Judge, Rampur, passed anorder that the restondent herein (plaintiff), the counsel for the respondent (plaintiff), and the counsel for the appellant (defendant) be summoned to appear in his Court on 24th July, 1962. It may be noted that while summons were directed to be issued to the respondent (plaintiff) as well as his counsel, summons were directed only to tha counsel for the appellant (defendant) but not to the apnellant defendant. Accordingly, the summons were served upon respondent (plaintiff), his counsel, and the counsel for the appellant (defendant). On 24th July, 1962, the respondent (plaintiff) as well as his counsel appeared in the Court Shri Bahadnr Singh, the learned counsel for the appellant (defendant) also appeared, but reported to the Court that he had no instructions from his client. The learned Subordinate Judge thereupon ordered on that date that summons be issued to the appellant (defendant) tor his appearance in the Court on 30th August, 1962. The relevant portion of the report of the process server. Sukru, who went to serve the summons on the appellant (defendant), as translated by the learned counsel for the appellant (defendant), runs as under:- "Sir, It is requested that on l2th August, 1962 I went to Chirag for the service of the summons in the presence of Sarju Rajput of Marthi and Moti Ram Brahman. Shri Ganga Ram is not found at his house. It was stated that he has gone to Jungle side for some work Therefore a copy of the summons has been affixed at the open door of the defendant in fie presence of the witnesses. Necessary report is submitted. Sd/. Sankra Peon 12th August, 1932." Thus, the summons were not served personally on the appellant (defendant), but the service was by affiixture." J