ST MARIAMMAL ROMAN CATHOLIC CHURCH Vs. LEKSHMANAN NADAR

JUDGEMENT

(1.) This Civil Revision Petition is directed against an order allowing a petition for setting aside an ex parte decree. The suit was filed in the Malabar year 1124 for redemption of a mortgage. It was contested by defendants 2, 4, 11, 15, 20 and 22, but was ultimately decreed by the Trial Court on 3-1- 1128. Against the Trial Courts decree defendants 20 and 22 filed an appeal in the District Court of Trivandrum and that appeal was also dismissed After the dismissal of the appeal the plaintiff-decree holder deposited the mortgage amount in court and applied for delivery of possession of the property Then defendant 12 applied, on 29-8-1952 A. D., for the decree to be set aside on the ground that the summons issued in the suit had not been served on him and that he had obtained knowledge of the decree only on 27-8-1952. Defendant 12 is the brother inlaw of defendant 11 who was one of the defendants who contested the suit before the appeal.

(2.) The summons issued to him (defendant 12) through court was returned unserved and, therefore, a summons was sent to him by registered post also. That summons was returned with the endorsement made by the post peon that he had refused to accept the same. Defendant 12s case was that the post peon had not taken the summons to him. The plaintiff decree holder contended that the summons was really taken by the post peon to defendant 12 and that the post peons endorsement of refusal by him was proof of tender and service of the summons on him. Acting on the dictum in 1956 KLT 630 that even though a court may proceed to pass a preliminary decree ex parte on the strength of the endorsement of the post peon that the packet was refused by the defendant the decree should be set aside when the defendant comes and swears that it was neither tendered nor refused, the lower court held, on the strength of defendant 12s evidence, that the summons was not tendered or served on him. Consequently it set aside the decree, and from its order setting aside the decree the decree holder has filed this revision petition.

(3.) The revision petition was first heard and disposed of by this court on 10-10-1957. By the order of 10-10-1957 the revision petition was allowed and the order of the lower court vacating the ex parte decree was set aside, with the observation that the burden to prove that there was no proper service of summons was on defendant 12 and that his interested testimony was not sufficient to discharge that burden. At the hearing of 10-10-1957 defendant 12 was not present. Subsequently he applied to have the order of 10-10-1957 set aside on the ground that the notice in the civil revision petition had not been served on him. This application was allowed and the civil revision petition was restored to file and has now been reheard.