FIRM HARNARAIN RAJNARAIN Vs. TARA SINHA

JUDGEMENT

(1.) This is an application by the plaintiffs against an order by which the appellate court has allowed the opposite party's application under Order IX, Rule 13 of the Civil Procedure Code (hereinafter to be referred to as the 'Code') and set aside the ex parte decree dated 3-7-1968 passed in Money Suit No. 21 of 1967.

(2.) The facts lie in a short compass. The plaintiffs, who do business, claim to recover certain amount of money from the opposite party as price of goods having been supplied by them to the opposite party. The said suit was numbered as Money Suit No. 21 of 1967 of the court of Munsif, second court, Buxar. The defendants in the said money suit were three in number including the opposite party, Smt. Tara Sinha. The other two defendants were said to be the agents of the opposite party through whom the opposite party had received the goods from the plaintiffs. The suit was decreed ex parte on the 3rd of July, 1968. The opposite party thereafter filed a petition under Order IX, Rule 13 of the Code for setting aside the ex parte decree. This application was filed on the 15th of July, 1969, that is much beyond 30 days from the passing of the ex parte decree.

(3.) The petition was resisted by the plaintiffs and one of the main grounds was the ground of limitation. According to the plaintiffs, the summons had been duly served; the opposite party defendant No. 1 having been served on the 29th of April, 1967 in terms of Order V, Rule 17 of the Code and the other two defendants, by a substituted service in terms of Order V, Rule 20 of the Code, on the 2nd of June, 1968. The parties led evidence with regard to their respective cases, the defendant No. 1 asserting that she had no knowledge whatsoever of the suit prior to the 4th of July, 1969, and the plaintiffs asserting to the contrary. Both the parties produced witnesses. The opposite party, as applicant, examined two witnesses and the plaintiffs also examined two witnesses. The learned Munsif considered all the evidence produced by the parties and in one of the paragraphs of his order observed "as I have held that summons of the suit was properly served upon the applicant, it has got to be held that the present application is not maintainable". None of the foregoing paragraphs of his order, however, show that he held like that. The learned Munsif in fact without finding that the summons of the. suit had been properly served, in any of the preceding paragraphs, has made that observation. Be that as it may, the application under Order IX, Rule 13 of the Code having been dismissed, it was appealed against. The appellate court came to the conclusion that the summons had not been duly served and that the applicant got the knowledge of the ex parte decree only on the 4th of July, 1969. It, therefore, allowed the application under Order IX, Rule 13 of the Code holding it to have been filed within time and also good on merits. It is against this order that the civil revision application has been filed before this Court.