RABI SHANKAR UPADHYAY Vs. RAM KEWAL RAM SONAR

JUDGEMENT

(1.) The petitioner is defendant No. 3 in a suit for redemption filed by the plaintiff against defendant Nos. 1 and 2, the mortgagees. The petitioner defendant No. 3 claims to be the tenant of the plaintiff having been inducted before the mortgage. This situation is not accepted by the learned counsel appearing for the plaintiff. The matter in issue in this application is whether the ex parte decree passed against all the defendants was correctly done. It is stated that defendant Nos. 1 and 2 have not contested the ex parte decree and have acquiesced to it. Defendant No. 3, however, being adversely affected and thus facing eviction, is wanting the ex parte decree to be set aside.

(2.) At the outset it was submitted by the learned counsel for the opposite parties that the decree was not binding on the petitioners. I do not agree with the submission. The wording of the decree is wide enough to include the petitioner. But the aspect, however, that emerge is that the defendant Nos. 1 and 2 have not assailed the passing of the decree. Ordinarily, the decree has to be set aside as a whole. But since they have not at this stage challenged the ex parte decree and have succumbed to it, I do not feel necessary to set aside the decree against them. To this, the petitioner has also no objection. I am doing this because, I feel the effect of the decree on defendant Nos. 1 and 2 will not be the same as on defendant No. 3.

(3.) I, therefore, now take up the case against defendant No. 3. The application has to be allowed on a short question. Seeing the notice, it appears that the notice was refused and services were effected by affixing the same on the wall. The requirement of law, however, is that the service should have been verified by the process server or an affidavit should have been sworn before the court. Having not complied with the requirements of law in regard to such service, the ex parte decree therefore, as far as against defendant No. 3 is set aside. He will now be allowed to file his written statements and contest the suit. No notice need be issued to defendant No. 3. He must appear and file his power and written statement within one month from today.