GOBARDHAN RAM BISHESHAR RAM Vs. BANARSI RAM

JUDGEMENT

(1.) This is an application in revision by the defendant against an order passed in appeal by the learned Civil Judge of Faizabad refusing to set aside an ex parte decree.

(2.) The facts of the case are that on 18-2-1946 a suit was brought by the plaintiffs as against Gobardhan Ram and Bhagoti Ram. Gobardhan Ram is the present applicant and he was personally served with the notice of the suit. A written statement was Bled by him oa 15-4-1946. There was a preliminary issue involved in the case about the valuation of the suit and a commissioner was appointed for ascertaining the market-value. Objections were filed to that report and in the first instance the learned Munsif ordered that that issue will be decided first before the final case is decided. But later on, on 3-2-1947 the learned Munsif was of opinion that the question of jurisdiction would not he a pure question of law but would also involve the decision on the merits of the suit itself and, therefore, he adjourned the decision of that issue and wanted to decide the, suit itself on merits and decide all the issues instead of taking them separately. A date was fixed in the case for framing of the issues and ultimately 5-3-1947 was fixed, for final disposal of the case. In the meantime the defendant came to this Court in an application in revision against the order of the Munsif refusing to decide the issue of jurisdiction in the first instance. On account of that revision no further proceedings in the suit itself took place and the proceedings remained stayed as the file of the case was summoned by this Court On 19-12-1950 this Court dismissed that application in revision and the case was sent back to the trial Court for decision on merits. The record of the case arrived in the Court of the Munsif of Faizabad on 22-4-1951. Five days later, on 27-4--1951, it was ordered that the suit should be put up for hearing on 21-5-1951 for disposal of an amendment application, which had been moved in the meantime on 22-2-1949 by the plaintiffs. That was an application of a minor nature regarding the correction of the age of the defendant. The Court on that date ordered that the summons be issued to the counsel for the parties. It appears that the counsel for the defendant was probably ill and had not been going to Court, Therefore, the Court ordered that the parties themselves be informed. There is no dispute about the service of the summons on the plaintiff but the summons of the defendant was returned unserved with the remark that the defendant was not found at his residence. On 21-5-1951 the Court ordered the plaintiffs to take steps to serve the defendant as he thought fit to fix 27-8-1951 for the final disposal. The plaintiffs thereupon applied for a substituted service on 23-5-1951 and it was prayed that the notice be served in a local paper 'Akhtar'. The application was allowed and the notice was served in that paper. , The defendant was, however, not present on 27-8-1951, the date fixed for hearing of the amendment application. The application for amendment was allowed and the case was fixed for final hearing and recording ex parte evidence for 27-9-1951 and the evidence of the plaintiffs was recorded on that date. Finally the arguments were heard on 5-10-1951 and judg-ment was pronounced on 16-10-1951 and the suit was decreed ex, parte. After obtaining the decree, the plaintiffs applied for the execution of the same by attachment and delivery of possession which took place on 2-1-1952.

(3.) Thereafter the application, out of which this application in revision, arises, was moved by the defendant applicant on 10-1-1952 for setting aside that ex parte decree. The application was based on the ground that the defendant had been unaware of , the proceedings in the case itself and he was never served with the notice of the date of hearing of the suit. For the first time he came to know of this ex parte decree by means of a telegram sent to him from Taada in the district of Faizabad to the defen dant at Calcutta on 3-1-1952 intimating to him that possession had been taken by virtue of the ex parte decree. It was contended in the application that since the defendant had knowledge of the decree for . the first time on 3-1-1952 and he had not been sufficiently served with the summons of the suit the ex parte decree should be set aside.