UNION OF INDIA Vs. ABDUL RAZAK

JUDGEMENT

(1.) THIS is a miscellaneous appeal by the applicant, in a proceeding under Order 41 Rule 21, Civil P. C., against the order dated 11-7-1951, refusing to restore Money Appeal No. 36/3 of 1950 to file and rehear it again, which, according to the appellant, was decreed ex parte without any service of notice on them.

(2.) THE money appeal in the lower appellate Court arose out of a suit for compensation for the partial deterioration of a consignment of oranges booked from Itwari on the B. N. Railway to Patna Junction on the E. I. Railway. THE sole defendant in that suit which was instituted on 27-5-1949, and numbered as Money Suit No. 470 of 1949, was the Dominion of India (Railway Department), New Delhi, who are the appellant here. THE written statement in the suit by the Dominion of India was filed on 27-12-1949, as the owner of the East Indian Railway Administration. That was signed and verified on behalf of the Dominion of India by Mr. D.R. Carmody as Deputy General Manager, E. I. Railway and was also signed by Mr. A.K. Bose, the advocate, who acted and pleaded for the East Indian Railway in the trial Court. On contest the suit was dismissed. Against that decision the plaintiff respondents preferred Money Appeal No. 36/3 of 1950 on 17-6-1950, in the Court of the District Judge at Patna. In appeal the defendant appellant did not put in appearance and the same on its transfer to the Court of Additional Subordinate Judge, 5th Court, Patna, was ultimately allowed ex parte by the order dated 30-9-1950. THEreafter on 6-6-1951, the defendant appellant filed Misc. Case No. 5 of 1951 under Order 41, Rule 21, Civil P. C., praying therein that the ex parte decree passed against them in Money Appeal No. 36/3 of 1950 should be set aside and the same be reheard in the presence of the parties on the ground, firstly, that the notices of that appeal had not been duly served on them, and, secondly, on the ground that the appellant had no knowledge of the decree passed in that appeal until 9-6-1951. THE Court on hearing the parties did not accept the appellant's contention and dismissed that miscellaneous case on the finding that "the notice of appeal was duly served on the applicant" and that the application was time-barred. Hence this appeal.

(3.) THE records of the case show that originally the notice of the money appeal in the lower appellate Court was sent to the Secretary, Railway Board, who in reply thereto on 29-6-1950, wrote to the District Judge, Patna, as follows: