KISHORI PRASAD Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) The appellant Kishori Prasad was defendant No. 3 in money suit No.99/81 in the court of subordinate judge, Bihar Sherif. There are however, several other defendants in the suit. The suit was decree ex-pane. Coming to know about the ex- pane decree the appellant filed and application under Order IX, rule 13 of the Code of Civil Procedure. The Subordinate Judge has rejected the application and hence this appeal.

(2.) According to the service report of the peon in the suit with regard to service of summons on the parties notices could not be served on the appellant as the process-server could not contact him. The summon was, therefore, returned unserved. The suit was instituted against the appellant not in his individual capacity but as the Member of M/s. Bhaisasur Shikhit Berojgar Motor Parivahan Sahkari Samiti. This Co-operative Society had taken loan from the plaintiff Punjab National Bank. The suit was filed for realisation of the amount. According to the case of the appellant at the time of institution of the suit the appellant ceased to be member of the Society. Summon and service report has been annexed as Annexure-2 to the Memorandum of Appeal. According to the summon, the appellant has been described as defendant No. 2 whereas according to the plaint he was defendant No. 3. In the service report the Process Server has stated that the appellant refused to accept summon, hence summon was affixed on the house of the appellant.

(3.) The case of the decree holder is that the appellant had received summon. All the defendants being member of the Society had knowledge of the suit and they intentionally left the suit on account of their weak case. The appellant examined himself in the court and asserted that he had not received any notice or summon in the suit. He got knowledge of the suit on 27.11.84. He also challenged the report of the process-server of refusal of summon. One witness on behalf of the decree holder was examined. He was an Advocate's Clerk He stated that summon-were filled up by him and the process server took the summons for service on the defendants. Two of the defendants, namely, Mathura Prasad Singh and Dharmendra Choudhary received summons. The other defendants refused to take delivery of the summons. It was stated that the defendants had knowledge of the suit. The process server was not examined to prove the refusal of summons by the defendants nor any of the witnesses, who had signed the report of the process server were examined.