(1.) THE short question that arises for consideration in this revision is whether the revision pertitioner had notice in execution. Both parties tried their level best to establish their stand because it was well-settled in law that failure to serve notice in execution would vitiate the entire sale. Pursuant to the final decree on a mortgage, the property was brought to sale and the sale had taken place. THEreafter it was contended on behalf of revision petitioner that there was no service of summons on her as required under Order 5, rule 9 (4) (iii) of the Code of Civil Procedure, while it was contended on behalf of the purchaser that there has been proper service since service had been effected on the husband of the petitioner herein which was permissible as per the provisions of Order 5, rule 15 of the Code of Civil Procedure. THE executing Court found that the service effected on the husband is not in accordance with Order 5, rule 9(4) (iii), Civil Procedure Code, which, contemplates personal service. THErefore service on the husband would not be tantamount to service in law. He accordingly allowed the application. Aggrieved by the same, the matter was taken by the decreeholder in appeal and the Appellate Court was of the view that Order 5, rule 9(4) (iii), Civil Procedure Code, had been repealed and therefore, he found that the procedure prescribed under Order 5, rule 15 can be adopted and consequently he held that the service was proper. Accordingly he reversed the finding of the Executing Court. Thus, the revision.
(2.) THE argument advanced on behalf of the revision petitioner is two-fold. (1) THEre has been no personal service on the petitioner as required under Order 5, rule 9(4) (iii) of the Code of Civil Procedure and the procedure prescribed under Order 5, rule 15, Civil Procedure Code would apply to proceedings other than those which are contemplated under sub-rule 4 of Order 5, rule 9, Civil Procedure Code and (2). THEre has been an endorsement made by the bailiff at the time to return of summons, only to suit his convenience. Hence for both these reasons, the order of the lower appellate Court is liable to be set aside.
(3.) I have given my careful consideration to the above arguments, it is true that if there has been proper service of summons and the Courts below have in fact found that there has been such a service, I am not going to interfere in revisional jurisdiction under section 115 of the Code of Civil Procedure. To that proposition of law which is based upon the decisions in Narendra Nath v. Sailendra Krishna Saha1, and M.L. and B. Corporation v. Bhutnath, there can be no demur whatsoever. But in this case I have grave doubts as to whether there was service of summons. When I say that I have grave doubt, that is borne out by a mere perusal of the endorsement made by the baliff in the case which I may do well if I extract the same in Tamil itself. The above endorsement, first of all appears to be very curious. In that the husband is claimed to say that the judgment-debtor happens to be his wife and she is living with him and further he would accept summons on her behalf. These recitals, in my view, are tell . tale recitals to which no credence could be given. Then again, the same recitals are found when the bailiff submits return of the summons to the office. Therefore I am of the view that even the husband of the petitioner herein has not been served. Assuming that the husband of the petitioner has been served, the learned District Judge has incorrectly applied the provisions of law. The correct provision that has to be made applicable is Order 5, rule 9 (4) (iii), Code of Civil Procedure, which reads as follows: