AMARENDRA NATH SHAW Vs. MONOTOSH MITRA AND OTHERS

JUDGEMENT

(1.) This appeal is directed against an order passed by the Judge, 5th Bench, City Civil Court, Calcutta on 24-1-70, rejecting an application for setting aside of an ex-parte decree.

(2.) A suit was filed by the plaintiff/respondent against the defendant/appellant Amarendra Nath Shaw for recovery of Rs. 38,000.00. The defendant did not appear and the suit was decreed ex-parte. The decree holder thereafter started execution proceedings. It was during the pendency of execution proceedings that the defendant/appellant moved an application for setting aside of the ex-parte decree saying that he was not served with summons, and that it was on 5th of July, 1969, the applicant was informed by his son that his share in premises No. 88/1/A, Rafi Ahmed Kidwai Road was to be sold by public auction according to an advertisement appearing in News-paper. He asked his son to find out the facts: It was on 29th of July, 1969 that he found that a suit has been decreed against him ex-parte. His contention was that he had never been served with summons. He had been residing at 122, Sarat Bose Road, which fact was known to the plaintiff, while suit had been instituted showing him as resident of 8, Gokul Mitra Lane and ex parte decree obtained.

(3.) An objection was filed on behalf of the plaintiff contesting this application alleging inter alia that a notice issued under Order 21 Code of Civil Procedure had been served in the execution case No. 89 of 1968 and that the petitioner had knowledge of the suit all along.