SAMIR SNIGDHA Vs. PRANAYA BHUSAN

JUDGEMENT

(1.) This is an appeal by defendant 4 whose application for setting aside an ex parte decree has been dismissed by the trial Court.

(2.) Although the appeal on the face of it is of a common nature, yet, on the facts, some intricate questions have fallen for consideration, namely, (1) Whether the trial Court could rely only on the service of summons by registered post for setting the appellant ex parte; (2) Whether notice of the application filed under O.9, R.13, C.P.C. or of the present appeal should also issue to the other defendants; and (3) Whether the decree could be set aside as a whole even when it happens to be in favour of some of the defendants.

(3.) In order to answer the above questions, the facts of the case may be briefly noticed. The plaintiff-respondent 1 filed Title Suit No. 29 of 1981 for partition impleading the members of the family including the appellant as defendant 4. The suit was contested by defendant 1 only and the other defendants were set ex parte. In view of the provisions of O.5, R.19-A, C.P.C. summonses were issued simultaneously by registered post and for personal service in the ordinary manner. It appears that the service report of the summons through the ordinary process was not traceable on the record. But there are materials to indicate that they had been issued. Be that as it may, the Court, on the endorsement made by the Postman (P.W. 3) on the registered envelope regarding refusal, held the service as valid and set the appellant ex parte and ultimately on 15-4-82 an ex parte preliminary decree was passed. On 3-5-82, the application under O.9, R.13, C.P.C. was filed by the appellant on the ground of nonservice of summons.