RADHA BALLAV THAKUR Vs. DAYAL CHAND BOSE

JUDGEMENT

(1.) THE plaintiff, who was the opposite party in the defendant's application in the Court below for setting aside an ex parte decree under Order 9, Rule 13 Civil Procedure Code, is the petitioner in this Civil Revision directed against an order passed by the learned Munsif, Cuttack in Misc. Case No.415 of 1960 whereby he set aside the ex parte decree and restored the suit in the circumstances hereinafter stated.

(2.) THE facts, shortly stated, are these: THE defendant No.1 Dayal Chandra Bose is the husband of defendant No.2. On May 15, 1959, the petitioner herein (hereinafter referred to as the plaintiff) filed a suit being T.S. No.141 of 1959 in the court of the 2nd Munsif, Cuttack, against the defendants, whose village home is at Kuapal, in the district of Cuttack and the defendant No.1 was also serving at Khadi Board at Bhubaneswar. Accordingly, there were two modes of service on the defendant No.1, namely by a registered post containing the summons and the plaint addressed to his village home address Kuapal in the district of Cuttack as aforesaid, and it was also issued to be served through his superior officer at Khadi Board where he was serving at Bhubaneswar. On June 22, 1959, the defendant No.1 is stated to have received the summons and the plaint at his village address personally. According to the plaintiff's case the service was thereby complete; but the summons, which was to be served through his superior officer at Bhubaneswar, was redirected to his village as he was then on leave. Thus the service through the superior officer could not be made. On November 2, 1959, as the order-sheet shows, the service return of defendant No.1 was not received; it appears therefore that the defendant No.1 had personally received the summons issued by post; the defendant No.2's husband (defendant No.1) had personally received the suit summons and accordingly the Court considered that service acceptance was sufficient on both the defendants; it also appears that the defendants having had taken the steps and having been absent on call on the date were set ex parte; the suit was fixed for ex parte hearing on November 21, 1959 on which date an ex parte decree was passed against the defendants. On November 24, 1959 the decree was drawn up, sealed and signed. On December 21, 1959 the defendant No.1 filed a petition for setting aside the ex parte decree under Order 9, Rule 13 Civil Procedure Code on the ground that he did not receive the summons. THE learned Munsif allowed the defendant's application for setting aside the ex parte decree and restored the suit. Hence this Civil Revision.