HARI CHAND Vs. GAINDA RAM

JUDGEMENT

(1.) This is a petition under Section 115 of the Code of Civil Procedure against the judgment of Additional District Judge, Karnal, dated February 18, 1978, confirming on appeal the order of the trial Court refusing to set aside the ex parte decree.

(2.) The respondent filed a suit for recovery of Rs. 9792/- against the petitioner and an ex parte decree was passed against him on March 31, 1975, on the report that the defendant had refused to accept service. It is not disputed that there was no compliance with the provisions of rule 17, Order 5 of the Code of Civil Procedure which provides the procedure to be followed when the defendant refuses to accept service. Consequently, the Court below proceeded on the ground that there was no due service but the application was dismissed as time barred with the finding that the petitioner failed to establish that he had come to know about the ex parte decree within 30 days of the filing of the application.

(3.) The case set up by the petitioner in the application was that Bakhtawar Singh and Kapur Singh, members Panchayat of the village informed him on August 25, 1976 that the decree-holder respondent had come to Patwari Halqa in their presence and asked for a copy of the jamabandi relating to the land owned by the judgment-debtor to get it attached and sold in execution of his decree. On learning this, he went to Karnal and submitted an application for inspection of the file on August 26, 1976. However, the file was made available on August 31, 1976, and after inspection of the same, he filed the application on September 8, 1976. In support of his case, he examined both the witnesses noticed above and also gave his own statement. The decree-holder neither examined any witness nor appeared as his own witness in rebuttal. The lower appellate court disbelieved the version put up by the petitioner on the ground that he had given the name of the decree-holder who had come to secure a copy of the jamabandi whereas both the witnesses did not name him in their statements and only said that they informed the petitioner that a Bania had come to take a copy of the jamabandi. Again it was observed by the lower appellate court that the petitioner had given a definite date in the application on which he was informed whereas in his statement neither he nor his witnesses could give any specific date on which the information was given to the petitioner. This is hardly any reason to disbelieve the case set up by the petitioner particularly when the decree-holder did not even appear as his own witness to rebut the evidence produced by the petitioner. The petitioner gave the name of the decree-holder in the application because he filed the same after inspection of the file. He was able to mention the date regarding the information given to him because it was fresh in his mind at that time.