RAJ KUMAR SINGH Vs. GOURISHANKAR JHUNJHUNWALA

JUDGEMENT

(1.) Defendant no. 2 is the appellant. This appeal is directed against a judgment passed by a learned Judge of this Court in Miscellaneous Appeal No. 282 of 1956 on the 2nd January 1959 That appeal was brought to this Court against an order of the trial Judge refusing to set aside an ex parte decree passed against defendant no. 2 and his three sons, defendants 18 to 20. in a money suit, which the plaintiff had laid on the basis of a promissory note executed on the 21st December 1946 by defendant no. 2 as karla of Hindu undivided family in favour of the plaintiff

(2.) The suit was decreed ex parte against defendants 2 and 18 to 20 and was dismissed against other defendants on contest. This was on the 13th July. 1955. In September. 1955, an application was filed by defendant no, 2 in that court under Order 9. Rule 13 of the Code of Civil Procedure to set aside the ex parte decree on the ground that summons had not been served upon him and that he came to know of the ex parte decree only on the 31st August. 1955 The trial court rejected both the pleas and dismissed his application. Against that a miscellaneous appeal was brought to this Court with the same result.

(3.) The only point canvassed before us by learned counsel appearing for defendant No 2 appellant is that the substituted service of summons, as ordered under Order 5. Rule 20 of the Code of Civil Procedure by the trial court on the 17th July. 1953 was not justified in law inasmuch as the pre-requisite condition laid down in that rule was not satisfied. He continued that Rule 12 of Order 5 enjoins upon a personal service of summons where-ever it is practicable on the defendant Rule 20 of Order 5 says: