DAMODAR PATNAIK Vs. KASHINATH SUBUDHI

JUDGEMENT

(1.) DEFENDANT is the Petitioner, In Original Suit No. 204 of 1960 in, the Court of the Munsif, Khurda, process was issued, both through Court and by registered post, on the Defendant on 31 -8 -1960. On 25 -10 -1960, the order passed was to the effect Summons through Court refused. Plaintiff proves service. Such service is accepted as sufficient. Defendant is absent on call and set ex -parte. To 8 -11 -1960 for ex parte evidence.

(2.) ORDER 9, Rule 13 lays down In any case in which a decree is passed ex -parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it, aside, and if he satisfied the ' Court that the summons was not duly signed the Court shall make an order setting aside the decree as against him. In this case, the summons 's were served under Order 5, Rule 17, Code of Civil Procedure. The report of the process -server is that the Defendant, refused to receive the summons, so it was served by affixture. Order 5, Rule 19, Code of Civil Procedure prescribes.

(3.) IN this case the Petitioner is supported by the evidence of the two witnesses who have attested the service report. They cannot be declared liars merely because they deposed to a state of fact contrary to what is mentioned in the service report. If the process -server had been examined by any of the parties to say that the Defendant was identified at the time of service to the knowledge of the two attestors, it is certainly open to the court to discard their evidence. When the process server has not been examined, there seems to be no reason for discarding their evidence. I am satisfied that the courts below exercised their jurisdiction with material irregularity in not keeping in view the correct law in the matter and by rejecting the evidence of the two attestors without giving any reason.