KRISHNA KUMAR MANDAL Vs. MUTWALLI ASHADULLA CHOUDHURI

JUDGEMENT

(1.) This is the Plaintiff's appeal against a decree of the Subordinate Judge of Malda affirming that of the Munsif, Second Court, of the same place. The principal Defendants in the present suit instituted on September 28, 1942, a Partition Suit, No. 35 of 1942, in the court of the Subordinate Judge, Malda. The Plaintiff of the present suit was Defendant No. 3 in that suit. He was in hajat from September 8, 1942, to August, 1944 is the case of the Defendants that summons in the partition was served on the Plaintiff by affixing same on the wall in absence on October 13, 1942. The courts below have found the Plaintiff used to live in the same mess with his father and there and that the father and brothers were also served with (sic). They appeared and contested the suit but sequently gave up contest when adjournment costs were (sic) and the partition suit was decreed ex parte but as far as Plaintiff in the present suit is concerned, it is the finding of Munsif that the Plaintiff was actually in jail during the e of service and the time when the preliminary decree in the (sic) suit was passed. Therefore, there can be no doubt of in his case the provisions of the law as to personal service of affixing on the wall, if personal service not be effected, has no application at all. This case falls (sic) Order V, Rule 24, according to which service must be effected (sic) the jail authorities. The ex parte preliminary decree the partition suit was passed on March 23, 1943. The present (sic) was instituted within the period of limitation on September 4, 3, when Order. IX, Rule 13 proceeding in the interval had proved (sic). There can be no doubt that, if no service had been empted on the Plaintiff of this suit through the jail authorities, then there was no legal service at all and the decree (sic) be considered a nullity as for as he is concerned and as the it was a suit for partition, if the decree is a nullity as far as (sic) of the co-sharers is concerned, the whole decree must go therefore, he will be entitled to have the whole decree set aside.

(2.) Dr. Sen Gupta appearing on behalf of the Respondents has (sic) that he did not make any specific prayer asking for a declaration that the decree is a nullity on the ground now (sic) out. That he was in jail was mentioned throughout by (sic) and the declaration really is only incidental to the relief he (sic) claimed. In any case, as I have to send the case back, as (sic) as the record goes there the Plaintiff must pray for an (sic) of the plaint by adding a prayer for a declaration it the decree is not binding on him and is a nullity as far as is concerned as there was no service of process on him through (sic) jail authorities. Dr. Sen Gupta's second point was that (sic) was nothing to show that there was no service on him rough the jail authorities as that point had not been clearly (sic) in the courts below, that is, the case under Order V, r. 24, (sic) having been clearly raised in the courts below, his clients (sic) not have adduced evidence to show that there was also vice in terms of Order V, Rule 24. The Defendants are entitled to do is and therefore, I must send the case back to the trial court, rich will allow the amendment of the plaint as I have stated (sic) and also allow the Defendants to file additional written statement on this point if so advised and raise a clear issue at Order V, Rule 24 and if it finds that there was compliance with Order Rule 24, then the suit must be dismissed. If it finds that there no compliance with Order V, Rule 24, then it must decree the suit the Plaintiff granting him a declaration as to nullity of partition decree and set aside the partition decree.

(3.) The costs up to this stage will abide the result. If preliminary decree in the partition suit is set aside, the (sic) decree will automatically fail and be set aside.