MAHESHWAR PRASAD SINHA Vs. AWADH PRASAD SINHA

JUDGEMENT

(1.) 1. This Civil Revision application is directed against the order dated 16.2.1996 passed by the 2nd Additional District Judge, Muzaffarpur, whereby he has affirmed the order dated 21.3.1995 passed by the Munsif, Muzaffarpur West, refusing to set aside the ex -parte order dated 17.2.1990 passed in Title Suit No. 45 of 1989.

(2.) The plaintiffs instituted Title Suit No. 45 of 1989 against the defendants (now deceased) namely, Inderashan Kuer and Sabuj Kuer, for declaration that the deed of gift dated 8.9.1978 said to be executed by Rampukari Kuer is forged, fabricated, illegal document and the defendant -lst party never acquired any right, title and interest of possession on the basis of the said deed of gift. Further declaration was sought for that the defendant 1st party had no right to execute the gift deed in favour of the defendant -second party. The trial Court after issuing summons of the suit passed ex -parte decree on 17.2.1990. The original defendant filed an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex -parte decree which was registered as Misc. Case No. 4 of 1990. In the said Misc. case, evidence was led by both the parties and the learned Munsif disposed of the Misc. case in terms of the order dated 21.3.1995 and refused to set aside the decree on the ground that summons of the suit was validly served on the defendants. At this stage it is worth to State here that during the pendency of the Miscellaneous proceeding the defendant -opposite party No. 1 died and the present petitioners were substituted in their place. After Misc. case was dismissed, the petitioners being aggrieved by the said order preferred a Misc. appeal before the District Judge, Muzaffarpur being Misc. Appeal No. 14 of 1995. The said appeal was eventually transferred to the Court of 2nd Addl. District Judge.The appellate Court after hearing the parties dismissed the appeal and confirmed the order passed by the Munsif. Hence this Civil revision application.

(3.) Mr. Arun Bihari Mathur, learned Sr. Advocate appearing for the petitioners assailed the impugned order as being illegal and contrary to the facts and evidence on record. Learned counsel submitted that no personal service was ever effected on the deceased defendants of the suit and the service of notice was accepted as validly served under the provision of Order V, Rule 19 -A of the Code of Civil Procedure. Learned counsel further submitted that in absence of valid service of summons on the defendants, the ex -parte decree passed by the Munsif is liable to be set aside.