IN RE: CHINNATHAMBI ASARI Vs. STATE

JUDGEMENT

(1.) THIS is a petition to revise the order passed by the learned Subordinate Judge, Madurai, on 3rd January, 1958, in I.A. No. 316 of 1957, in S.C.S. No. 113 of 1957, setting aside the decree which had been passed ex parte in that suit on 18th April, 1957. The defendant -petitioner in the lower Court alleged that she had not been duly served with summons in the suit and that she learnt of the suit and the decree for the first time when she was served with notice of the execution on 30th September, 1957. The application to set aside the decree, was made on 14th October, 1957. The learned Subordinate Judge held that the petitioner in the lower Court (defendant in the suit) had not been duly served with summons in the suit.

(2.) LEARNED Counsel for the plaintiff (petitioner in the Civil Revision Petition) contends that the learned Subordinate Judge's finding that the defendant in the lower Court had not been duly served with summons is open to review by this Court. Summons which had been taken to the defendant in the lower Court was returned with the report that a copy was affixed to the residence of the defendant. The defendant's case was that she was not residing at the building to the outer door of which the notice had been affixed. The learned Subordinate Judge accepted the defendant's case on that point and found that the defendant's ordinary place of residence at the time of the alleged affixture of the copy of the summons was not the building to whose door the copy had been affixed. Petitioner's learned Counsel contends that in coming to that conclusion the learned Subordinate Judge has not taken into account some particular piece of evidence. I do not consider that the Subordinate Judge omitted to take note of anything that was material and see no reason to interfere with the finding of fact given by him, namely, that the building to whose outer door the notice was affixed was not the place where the defendant was ordinarily residing at the time of the alleged affixture. I see no reason further to disturb the Subordinate Judge's finding on the other question of fact relating to the date of knowledge of the suit on the part of the defendant, namely, that the defendant did not know of the suit or of the decree until she was served with notice of the execution on 30th September, 1957. I accept that finding.

(3.) THE facts relevant to the learned Counsel's contention are these : On 14th October, 1957, the defendant (petitioner in the lower Court) filed I.A. No. 316 of 1957 tendering a draft security bond. A list of Immovable properties which she offered as security was appended to that application. Notice of the application was ordered to the plaintiff. His objections were heard. On 28th October, 1957, the Subordinate Judge passed an order holding that the properties were sufficient security for the decree, approving the draft security bond and calling for a fair bond by 29th October, 1957. On 28th October, 1957, the fair bond on stamp paper was executed by the defendant (petitioner in the lower Court). The fair bond was filed in Court on the same date, namely, 28th October, 1957, and was checked by the office of the Subordinate Judge. The Subordinate Judge passed an order on 29th October, 1957, accepting the fair security bond. The bond was presented for registration on 30th October, 1957 and was registered on 31st October, 1957. The point is whether, on these facts, the defendant had not furnished security within the time limited by the proviso to Section 17(1) of the Provincial Small Cause Courts Act.