HIRALAL Vs. HARI SINGH

JUDGEMENT

(1.) ASSAILING the order dated 26.2.2007 passed by the Additional District Judge, Sohagpur District Hoshangabad in M.J.C. No.6/2006 allowing the application under Order 9 Rule 13 of CPC filed by the non-applicant, this revision has been preferred by the applicant-decree holder.

(2.) IT is not in dispute that the applicant filed a suit seeking declaration that the sale deed executed by him on 27/4/2001 is not an absolute sale but it is a conditional sale towards the security of the loan. In the said suit, notices were issued on the non-applicant which have been served by way of publication in daily newspaper Nav Bharat, Bhopal. IT is the contention of the applicant that despite issuance of notice on various occasions which could not have been served on him though the address was the same. Once upon a time the notice was received by one of the son of the non-applicant but later on he scored out his signature, however refused to accept the same. In such circumstances, after substituted service as specified under Order 5 Rule 20 of CPC ex partee is proceeded against the non-applicant which is in conformity to law. In such cases merely making a bald assertion regarding non-service would not have been sufficient. Reliance has been placed on the judgment of the Apex Court in the case of Basant Singh and another Vs. Roman Catholic Mission, (2002) 7 SCC 531and it is urged that the Trial Court without considering the aforesaid aspect passed the order impugned which is unsustainable in law.