NARENDRA COMPANY Vs. HUKUMCHAND MILLS LTD

JUDGEMENT

(1.) Mr. Garg submitted that the learned trial Judge committed the error in taking resort to Order V, Rule 19-A of the Civil Procedure Code and holding that there was proper and legal service of notice of suit bearing No. 27-B\87. He submitted that the learned Trial Judge also committed the error in rejecting M.J.C. No. 32/90 which was filed by the present appellants when the present appellant showed sufficient cause for setting aside the impugned decree which was passed against them exparte. Mr. Garg (sic.) on the provisions of Order V, Rules 19 and 19-A and submitted that the learned Trial Judge was wrong in presuming that the appellants were properly served so far as the said suit was concerned. He pointed out that trial Court deleted the name of defendant No. 4 from the array of defendants who was the only defendant being properly and legally served as the notices were returned unserved so far that defendant was concerned. Mr. Garg submitted that the learned trial Judge should have held that there was no proper and legal service so far as appellants 1 to 3 were concerned who were defendants 1 to 3 in the said suit.

(2.) Mr. Garg further submitted that when the exparte decree was passed against the appellant and it was sent to the Court concerned at Madras (now Chennai) and when the execution proceedings started, for the first time the appellants learnt that such a decree was passed against them exparte, He submitted that the appellants came to Indore contacted a lawyer and submitted M.J.C. bearing No. 32/ 90. However, that was dismissed by the learned Trial Judge,

(3.) M.J.C. bearing No. 32/90 was concerned with a prayer made by the appellants for the purpose of setting aside the exparte decree which was passed of against them in view of the provisions of Order IX, Rule 13, Civil Procedure Code. The learned Trial Judge held that the notices were sent to the appellants by traditional system as well as by Registered Post acknowledgement due on 9.12.1987. The learned Trial Judge disbelieved the evidence of appellant No. 3 Trikamdas when he stated on oath that the appellants did not receive any summons of the suit bearing No. 27-B/87 which was decreed against them exparte. The learned Judge held that the notices which were sent to the appellants by traditional system were not returned either served or unserved. He also held that the postal receipts showed that the summons were despatched to the appellants for service by Registered Post AD on 9.12.1987. By pointing out this, she presumed that notices must have been served on them in view of the provisions of Order V, Rule 19-A, Civil Procedure Code, Order 5, Rule 19 provides that where a summons is returned under Rule 17, the Court shall, if they return, under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in that matter as it thinks fit, and shall cither declare that the summons has been duly served or order such service as it thinks fit,