SRI. BANSIDHAR JENA Vs. TRILOCHAN JENA AND ANR.

JUDGEMENT

(1.) THIS civil revision is directed against an appellate order allowing an application under Order 9, Rule 13 Code of Civil Procedure.

(2.) IN T. M. S. No. 18 of 1974 filed by the Petitioner against the opposite parties, a preliminary decree was passed on 9 -9 -1974 and a final decree was passed on 17 -11 -1975. Both the decrees were passed ex parte. On 29 -4 -1976 possession of the mortgaged property was delivered to the Petitioner in execution of the final decree. On 18 -10 -1976 opposite party No. 1 Trilochan Jena filed an application under Order 9, Rule 13 Code of Civil Procedure for setting aside the ex parte decrees on the ground of non -service of the suit summons and the notice in the final decree proceeding. His contention was that he was staying at Rengali from the year 1971 till 10th October. 1976 and after his return to the village he learnt from one Gokuh Jena on 13 -10 -1976 that an execution case had been filed against him by the Petitioner.

(3.) AT the enquiry, both the parties adduced evidence in support of their respective contentions and the learned Munsif on a consideration of the same found that there was due service of the processes and accordingly rejected the application under Order 9, Rule 13, Code of Civil Procedure Code. On appeal, the learned Subordinate Judge differed from the finding of the learned Munsif and came to hold that the opposite party no 1 was staying away from his village and the suit summons addressed to him was not served on him. He also held that the notices addressed to opposite party No. 1 in the final decree proceedings were tendered to opposite party No. 2, but the contents thereof were not read over and explained to him and as such there was no due service of the notices.