MIRA RANI DEY Vs. NAMITA GOSWAMI

JUDGEMENT

(1.) This appeal is directed against an order passed on 30th July, 1974 by Sri S. B. Putatunda, Subordinate Judge, 4th Court, Alipore, in Miscellaneous Case No. 42 of 1973 arising out of Title Suit No. 35 of 1968 dismissing the appellant's application under Order 9, Rule 13 of the Code of Civil Procedure.

(2.) The facts of the case may briefly be stated as follows:-- The appellant filed an application under Order 9, Rule 13 of the Code alleging that the summons of Title Suit No. 35 of 1968 was never served upon her and prior to 9-11-73 she had no knowledge of the suit and of the decree passed therein. It was only when on the evening of 9-11-73 one Sri Subodh Chandra Mukherjee along with others came to her house and told her that he had been appointed Receiver in the suit. The petitioner thereafter engaged one learned Advocate on 10-11-1973 to make enquiries in respect of the suit. After filing an information slip and on personal inspection of the record the learned Advocate came to know that the plaintiff in collusion with the pro forma opposite parties brought the suit and by practising fraud managed to obtain a fraudulent and collusive decree. The further case of the petitioner is that the plaintiff in collusion and conspiracy with the pro forma opposite parties and the process server procured a fraudulent return of service of summons upon the petitioner. That the summons was never served. That the process server never came to the residence of the petitioner on 29-5-68 or on any other date. That since 1967 the petitioner is not on good terms with her husband, who was defendant No. 1 in the suit and opposite party No. 6 in the present proceeding. It is also alleged that the defendant No. 1 in collusion and conspiracy with the plaintiffs made a sham show of contest to facilitate the passing of the decree in the suit. That had the petitioner been served with the summons, she would have contested the suit and that the petitioner had suffered irreparable loss because of the collusive decree passed ex parte against her.

(3.) Opposite parties Nos. 1 to 5 and 7 oppose the application. It is stated that the summons was duly served upon her and she had full knowledge of the suit and the decree. On the date of the service of summons the petitioner was residing with her husband at the premises where summons was served. All other allegations in the application have been denied. It is asserted that the suit was very much contested by the petitioner's husband up to the Hon'ble High Court and after repeated failures the petitioner has been set up by her husband with a view to harass the opposite parties. The Hon'ble High Court found that the petitioner's husband Sitanath Dey mismanaged the estate and mis-appropriated a large amount belonging to the estate. The learned Subordinate Judge considered the facts and circumstances of the case and the evidence on record and held that the summons was duly served upon the petitioner. He further found that she had knowledge of the suit and of the decree long before 9-11-73 and as such the application under Order 9, Rule 13 is hopelessly barred by limitation. In that view of his finding the learned Subordinate Judge dismissed the application. Being aggrieved Mira Rani Dey has come up to this Court in appeal.