SHANTARAM FATU PRABHU DESAI Vs. HARSHA UMESH SARDESSAI

JUDGEMENT

(1.) BY the present revision application, the petitioners are challenging the order dated 18th March, 1997 passed by the Civil Judge, Senior Division, Quepem in Civil Miscellaneous Application No. 127/95 in Special Civil Suit No. 57/89 whereby the trial Court has allowed the application filed by the respondents herein under Order IX, Rule 13 and thereby has set aside the ex parte decree passed against them in said Special Civil Suit No. 57/89.

(2.) THE facts in brief relevant for the decision are that the petitioners herein filed Special Civil Suit No. 57/89 on 1st December, 1989 against the respondents and three other persons for mandatory injunction. Since the service of the bailiff could not be effected on the respondents herein, the petitioners applied for substituted service by publication of summons in the newspaper and the same was allowed by the trial Court by Order dated 27th July, 1992. The summons was published in the daily, Gomantak Times, according to which, the respondents were required to appear before the trial Court on 24th February, 1993. Since the respondents failed to appear on the said date, the order to proceed ex parte was passed by the trial Court and the evidence of the petitioners was recorded on 29th March, 1975 and suit was partly decreed by the judgment and decree dated 30th April, 1993. The petitioners thereafter filed an application for execution of the said decree and the notice of the same was served by registered A. D. post upon the respondents on 8th July, 1995. Thereafter on 7th August, 1995 the respondents herein moved an application under Order IX, Rule 13 for setting aside the said decree on the ground that there was no proper service of summons on the respondents by following the mode established under the law and the publication which was ordered to be made under Order V, Rule 20 in Daily Herald was in fact published in Daily Gomantak Times". However, the respondents are not subscribers to any of the said dailies and they read only the Marathi Daily and as such they had no occasion to know about the publication of summons. The trial Court by the impugned order held that there was no proper service of summons upon the respondents herein on account of failure on the part of the petitioners to take necessary steps to serve the respondents by registered A/d as required by law as well as on account of non-affixation of summons on the residential premises of the respondents and that even the publication though ordered to be done in the Daily Herald was published in "gomantak Times". The trial Court therefore set aside the ex parte decree by the impugned order.

(3.) WHILE assailing the impugned order Shri M. S. Sonak, learned advocate appearing for the petitioners submitted that the trial Court erred in ignoring the issue of limitation while entertaining the application under Order IX, Rule 13 when on the face of the record the application was filed nearly 31 months after the expiry of limitation for setting aside such decree in terms of Order IX, Rule 13 of C. P. C. He further submitted that the trial Court had no powers to review its order regarding satisfaction of service of summons by substitute service, which the Court had arrived at before passing the order to proceed ex parte in the suit. According to the learned advocate, the records disclose that the petitioners had taken all the steps to serve the respondents as required under the law and since all those efforts had failed, the petitioners had applied for substitute service in terms of Order V, Rule 20. According to the learned advocate, the service of summons by publication in a newspaper is one of the modes of service of summons legally permissible under Order V, Rule 20 and in the instant case the records disclose that the trial Court after being satisfied of the publication of the summons in the Gomantak Times, passed the ex parte order on 24th February, 1993, the date on which the respondents failed to appear despite of the said summons being published in the said newspaper. He further submitted that it is not in dispute that the Gomantak Times is a local newspaper. He then submitted that the records further disclose that there was a notice sent to the respondents after decree of the suit on 9th March, 1994 by the advocate of the petitioners informing about the said decree and, therefore, the respondents had sufficient opportunity to know about the decree much prior to 8th July, 1995.