GULAB CHAND Vs. HARI SHANKAR PODDAR

JUDGEMENT

(1.) D. K. Seth, J. On 4th August, 1971, Suit No. 347 of 1971 was initiated for parti tion. The said suit was decreed ex pane on 13th July, 1972, defendant No. 20 made an application for preparation of final decree. The final decree was prepared on 11th Sep tember, 1973. On 17th July, 1974, defendant No. 1 filed an application under Order IX, Rule 13 of the Code of Civil Procedure, hereinafter referred to as the Code, for setting aside the ex pane decree. The said ap plication was registered as Misc. Case No. 166 of 1974. Defendants Nos. 11 and 12 had also filed an application under Order IX, Rule 13 on 22nd July, 1974 which was registered as Misc. Case No. 171 of 1974. By order dated 7th February, 1976, both the Miscellaneous cases were dismissed for non-prosecution. On 3rd May, 1976 when the defendant No. 20 was demolishing a shop out of the disputed shops, defendant No. 16, the petitioners herein, came to learn about the decree. Has made an enquiry on 4th May, 1976 and obtained the particulars of the decree and moved an application was registered as Misc. Case No. 57 of 1976. The trial court rejected the said application by Border dated 8th September, 1982 on the ground that the application was barred by limitation and that the service of summons was irregular and, therefore, the said ir regularity does not require setting aside of the ex pane decree. Against the said order the petitioner filed Misc. Civil Appeal No. 222 of 1982 on 21st September, 1982. By order dated 29th October, 1983, the Addi tional District Judge, IIIrd Court, Azamgarh, allowed the appeal in part by setting aside the final decree without disturbing the preliminary decree. It is this order which has been challenged by means of this petition.

(2.) ON the prayer of Sri Prabha Kant Mishra, learned counsel for the petitioner, leave is granted to convert the application to one under Article 227 of the Constitution of India. 2. In paragraph 5 of the revisional order, it is recorded that the trial court had accepted the service as sufficient on account of refusal of the said defendant to accept the said service through Registered Post. The service through process-server was also returned with the note 'refused'. The same was, therefore, accepted by the learned trial court. Now services with regard to the postal authorities were not available but no secon dary evidence was sought to be led to prove the endorsement of the Postman. It was also observed that the said notices were sought to be served at the firm. It was also noted that how the Postman reached the firm when there was no admission that the firm was situated at the same address and the witness who had witnessed the refusal had said that he did not go with the Postman for service. Therefore, refusal of registered cover could not be sustained. It has also been found that the presumption of services was not to be drawn. The registered cover was opened by the Court but the copy of the plaint was not found with the summons. Relying on the decisions as referred in the said order, it was held that the summons was not duly served when it was not accompained by the plaint. Now reliance was sought to be placed on the proviso of Rule XIII of Order IX. Admittedly the applica tion for setting aside ex-pane decree was made in 1974 whereas the proviso was in serted by the amending Act with effect from 1st February 1977. Therefore, the same can not be attracted. Even the same speaks of irregularity and not illegality and the revisional court had come to a finding that it is not an irregularity but an illegability. After having found that the summons were not served, the revisional court proceeded to decide as to whether the applicant had knowledge of the suit and on the basis of the knowledge of his nephew, the applicant must have knowledge. Mr. Prabha Kant Mishra, learned counsel for the petitioner, contends that there was a collusion between all the other defendants with the plaintiff and, therefore, the applicant was kept in the dark. It appears that the revisional court had proceeded on the basis of surmises and hypothesis to arrive at the conclusion that the applicant had knowledge of the decree before 3rd May, 1976 and, therefore, he was not convinced with the justification for set ting aside the preliminary decree and, there fore, he had affirmed the order of the learned Munsif so far as that part of the order cannot be assailed in the present peti tion. 4. So far as the refusal to set aside the preliminary decree is concerned, it appears that the revisional court, after having found that there was no service of summons in respect of the suit, he proceeded in illegal exercise of jurisdiction to hold that the applicant had knowledge of the suit on the basis of surmises as he has recorded in the order itself. The approach is wholly ir regular and illegal. 5. In that view of the matter, I am unable to agree with the finding and con clusion arrived at by the revisional court in respect of setting aside of the ex pane decree. 6. In the result, this petition is allowed. That part of the order by which the revisional court had refused to set aside the ex pane decree is hereby set aside. The preliminary decree, therefore, is hereby set aside. The suit shall proceed afresh upon notice to all the parties on merits. Since long time has lapsed it is expected that the learned trial court shall make all endeavour to dispose of the suit as early as possible preferably within a period of one year from the date a certified copy of this order is produced before him. The learned counsel for parties assure that none of the parties would take any adjournment unless the same is exceptionally unavoidable. How ever, the possession of the parties as of today shall not be disturbed untill the final decree is executed. There will be no order as to costs. Certified copy may be given to the parties on usual charges within 7 days. Petition allowed. .