LALJI BANRA Vs. SUKHRAM BANRA

JUDGEMENT

(1.) Title Suit No. 39 of 1980 filed by the plaintiff-petitioner for specific performance of contract against the defendants 1 and 2 was decreed exparte on 8.12.1981. Thereafter Execution Case No. 4 of 1982 was levied by the decree-holder and on 8.10.1983 sale deed on behalf of the Judgment-Debtor, defendant No.1, was executed in favour of the decree-holder by the Court. The subsequent purchaser, who was defendant No. 2 in the suit, on 3.1.1985 filed an application under Order IX Rule 13 of the Civil Procedure Code before the Subordinate Judge, Chaibasa, for setting aside the aforesaid exparte decree. It was registered as Miscellaneous Case No. 1 of 1983. By the impugned order dated 8.12.1989 the said Miscellaneous Case has been allowed and the exparte decree has been set aside.

(2.) Learned Counsel for the petitioner submitted that since the date of knowledge of the decree was not disclosed and it was simply stated that the applicant came to know about the exparte decree on service of notice in a proceeding under Section 145 Criminal Procedure Code from the court of the Sub-divisional Magistrate, Saraikella, vide Misc. Case No. 352 of 1994. the Miscellaneous case was barred by time. Secondly, after service of summons on the defendants by publication in the District Gazette under Order V Rule 20 of the Civil Procedure Code, it cannot be said that the applicant had no knowledge about the suit.

(3.) Mr. N.K. Prasad Senior Counsel for the opposite party on the other hand submitted that the applicant opposite party filed a petition under Order IX Rule 13 of the Civil Procedure Code immediately after receiving information about the exparte decree on service of notice relating to a proceeding order Section 145 of the Criminal Procedure Code. Further, the substituted service of notice by publication in the District Gazette was not proper, as Sub-rule1(a) of Order V Rule 20 of the Code required such publication in a daily news paper circulating in the locality and, therefore, the court below has rightly set aside the exparte decree.