KARNAIL SINGH Vs. MALKIAT SINGH

JUDGEMENT

(1.) This petition has been filed impugning the order of the Ld.Civil Judge (Junior Division), Moga dated 29.4.2017, whereby, the application of the petitioner under Order 5 Rule 20 of the Code of Civil Procedure for summoning the respondent by way of substituted service has been dismissed.

(2.) The petitioner filed a suit for possession by way of specific performance of the agreement to sell dated 15.9.2007. The suit was contested by the respondent through his son Gursewak Singh as his general attorney. The respondent filed written statement refuting the claim of the petitioner. However, he did not lead any evidence. The suit was decreed vide judgment and decree dated 14.9.2015. After the expiry of the period of limitation for filing appeal, the petitioner filed execution application, in which notice was issued to the respondent for 16.2.2017. However, he could not be served and the process server reported that the respondent had gone abroad. Thereafter, the Ld. Executing Court vide order dated 16.02.2017 directed that notice be issued to the respondent under Order 5 Rule 25 CPC, which required the summons to be addressed to the respondent at the place outside India where he was residing. As the petitioner did not know the address of the respondent outside India where he could be served, but only knew his last known address, on which he was served in the suit and had put in appearance and filed written statement, the petitioner moved an application for permission to effect substituted service under Order 5 Rule 20 CPC. That application has been declined by the impugned order.

(3.) The Ld. Court held that where a defendant is residing out of India and has no agent in India empowered to accept service, then as per Order 5 Rule 25 the summons shall be addressed to the defendant at the place, where he is residing. It was held that as Order 5 Rule 25 CPC deals with the specific situation, where the defendant is residing outside India and does not have any agent in India, hence, service of the defendantrespondent, who was reported to have gone abroad, could be only effected in the manner prescribed in Order 5 Rule 25 and the general provisions of Order 5 Rule 20 CPC could not be resorted to.