RAMPATI DEVI Vs. CHANDRIKA DEVI

JUDGEMENT

(1.) This appeal by the defendants in a suit in which an ex parte decree has been passed against them, has been filed against the judgment of the Court below rejecting the appellants' application under Order 9, Rule 13 of the Civil P. C. (hereinafter referred to as 'the Code) for setting aside the ex parte decree. The suit was filed by the plaintiffs-respondents for cancelling a sale deed executed by them in favour of the appellants on certain grounds. The suit was decreed ex parte on 14-4-1977 and an application by the appellants was filed on 12-5-77, that is, within the period of limitation. The appellants have alleged that they were not served with the summons in the suit and had no knowledge about the same till after the ex parte decree was passed. The Court has rejected their case.

(2.) Admittedly, the appellants are pardanashin ladies and according to the plaintiffs' case, the serving peon served the summonses through a maid-servant. During the course of evidence, it became clear that the allegations regarding service through a maid-servant could not be established. The further evidence on behalf of the respondents that the defendants-appellants from behind a parda indicated that they would not accept the summonses, does not appear to be reliable and has been rightly disbelieved by the Court below. The evidence of service has been rejected by the Court below and the view taken appears to be correct. However, the Court assumed that in those circumstances there was merely an irregularity in the service of summons within the meaning of the Second Proviso to Rule 13 of Order 9 of the Code and, consequently, the decree should not be set aside. The Court has assumed that the defendants had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs' claim.

(3.) Mr. Jugal Kishore Prasad, appearing for the appellants, has contended that in the facts and circumstances of the case, it has to be held that the summonses were not served at all on the appellants and further that in such a case the Second Proviso to Rule 13 has no application. Mr. Lakshman Sharan Sinha, appearing for the respondents, argued that the service of summonses in the case was valid inasmuch as the appellants are pardanashin ladies and the other conditions of Rule 17 of Order 5 of the Code were satisfied. The said provisions are in the following terms :