S AMEERAN SAHIB Vs. SOMANATHA NADAR

JUDGEMENT

(1.) THE defendants in the suit are the appellants in C. M. A. No. 187 of 1972 and the petitioners in C. R. P. No. 1055 of 1972. The suit was filed against the defendants for recovery of a sum of Rs. 11,471-56 on two heads i. e. , one on a pronote and another on dealing. On 27-2-1971 an ex parte decree has been passed. On 3-9-1971, the defendants were served with notice in the execution petition. After coming to know of the execution petition the defendants on 4-91971 filed two interlocutory application I. A. No. 1909 of 1971 for the purpose of excusing the delay in filing the application for setting aside the ex parte decree, and I. A. No. 1910 of 1971 for setting aside the ex parte decree dated 27-2-1971. The trial Court dismissed both these applications. The defendants have filed C. M. A. 187 of 1972 against the decision in I. A. 1910 of 1971 and C. R. P. No. 1055 of 1972 against the decision in I. A. 1909 of 1971.

(2.) MR. Narayanaswami learned counsel for the appellants and the petitioners respectively in the abovesaid cases submitted that as per Art. 123 of the limitation Act, the time to file the petition to set aside the ex parte decree will run only from the date of knowledge of the decree. He is also aware that if the summons have been duly served, the time will run from the date of the decree. Hence Mr. Narayanaswami has submitted that the summons were not duly served inasmuch as the plaint copy was not attached to the summons. He cited the decision in Gyanammal v. Abdul Hussain Sahib, 61 Mad LJ 920 = (AIR 1931 Mad 813 ). In that decision a Bench of our High Court dealing with the service of summons duly upon the defendant has observed that the defendant can dispute the due service on the ground that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served he was not provided with the knowledge of the claim against him, which is the object of the service. It is further stated in the said decision that even if the defendant is served personally it is open to him to come to the court and show that (sic) was not really due service because it did not really give him knowledge of the claim against him.

(3.) AS far as the present case is concerned, the defendants have specifically raised the plea stating that they were not served with a copy of the plaint. The lower court has failed to consider this point except stating that the defendants had knowledge of the suit. Mere knowledge of the suit is not enough to disentitle the defendants from filing a petition to set aside the ex parte decree beyond a period of 30 days from the date of the decree. The essential requirement is that the defendants must be aware of the date of the decree if the summons were not duly served upon them. No doubt, Mr. Narayanaswami has further contended that due to the fraud practiced by the plaintiffs they did not take serious note of the alleged suit. This he states, on the ground that the defendants thought that a suit has been filed only on a promissory note inasmuch as Ex. B-3 the suit notice dated 2310-1969 mentions only the money due on the pronote, but unfortunately the suit is not only based upon the promissory note but also certain dealings. This according to the defendants is not a bona fide claim. But I do not think that that point has any relevancy for the present case and it is unnecessary for me to deal with the same since that will not from a ground for setting aside the ex parte decree.