YELAVARTI ANASUYAMMA Vs. CHENNUPATI RAGHAVAMMA

JUDGEMENT

(1.) The revision petitioner (the fifth defendant) and her son (sixth defendant) were impleaded as legal representatives of the second defendant in the suit. They were served by substituted service and the suit was decreed on 18-3-1966 ex parte against them. The fifth defendant moved the first Court and the appellate court unsuccessfully to set aside the ex parte decree.

(2.) The enquiry under R. 13 of O. 9 of the C. P. C. touches the following two questions; (1) whether the summons was duly served and (2) whether the defendant was prevented by sufficient cause at the hearing. The language in R. 13 of O.9 of the C. P. C. gave rise to a serious conflict and divergence of judicial opinion ever since 1926. This Court, however, in a way reconciled the divergence in Full Bench judgement in Shamuki v. Venkatarami Reddy, 1956 ALT 194 : (AIR 1957 Andh Pra 1). The view of Reilly,J. in Gyanammal v. Abdul Hussain, ILR 55 Mad 223 ; (AIR 1931 Mad 813) as to "the cardinal principle of our administration of civil justice that no decree shall be made against a party behind his back" was reconciled holding the Court is to be satisfied before a decree is set aside whether the defendant had knowledge of proceedings, whether the defendant avoided the proceedings and also whether the defendant was prevented by sufficient cause at the hearing of the suit. It is not necessary to delve in all the aspects: the Parliament (sic) Limitation Act (Act XXXVI) of 1963) added the following explanation in Article 123.

(3.) The Courts found that the Process Sever in the return reported that the sixth defendant and the fifth defendant were living in one house at Kuchipudi. The sixth defendant in the suit filed a written statement after summons were effected by substituted service. The other defendants who had hotly contested the suit were all from the village Kuchipadi. The inference was that the fifth defendant in such circumstances had knowledge and failed to appear before the court on 18-3-1966 of her volition.