SYED MUHAMMAD SAHIB Vs. APRLALAGAPPA CHETTIAR

JUDGEMENT

(1.) THE facts of this revision petition may be stated as follows : THE respondent before me was the plaintiff in O.S. No. 1006 of 1922 on the file of the District Munsif of Tiruppur. He filed a suit to recover Rs. 797-9-6 due on a pro-note executed on 27 December, 1919, by the two defendants. THE 2nd defendant never appeared in the suit and we are not now concerned with him. THE 1st defendant is the petitioner before me. THE first summons to him was issued in April, 1922. It was not personally served and a fresh service was ordered. Summons was taken out a second time in July, 1922. THE Amin went to the village of the defendants on 7 July. He learnt that the defendants had gone to Satyamangalam and other places and the time of their return was not known and that there was no adult male member in their families. THE summonses were then affixed to the outer doors of their houses. THEse facts were sworn to by the Amin before the Deputy Nazir and apparently also confirmed by the report of the village officer. This return of the Amin was on the 10 July. THE District Munsif ordered the suit to proceed ex parte and the case was taken up on the 19 July and decreed in favour of the plaintiff. THE 1 defendant filed the present petition on the 7 of August, 1923 with an affidavit in which he states that he was not aware of the suit, that the notice in E.P. No. 2104 of 1923 (a petition filed for the execution of the decree) was served on him on 31 July, 1923. He mentioned other facts going to show that there was collusion between the plaintiff and the 2nd defendant and referred to a mortgage obtained by the plaintiff's brother from the 2nd defendant. He afterwards applied for and obtained a copy of this mortgage and filed it before the District Munsif on the 19 of October, 1923. THE District Munsif said: "No doubt there was no personal service but 1 defendant has apparently been aware of the decree and second defendant's alleged partial adjustment of it 1 defendant's defence on the merits seems to be very weak. I am not inclined to set aside the decree." In an application under Order 9, Rule 13, what the Court has to find is not whether the defendant has any good defence on the merits but whether there is proper service and if there is proper service whether there was sufficient cause for his nonappearance. I presume that in this case there was service which was good service according to law though I should think Courts ought not to proceed to the trial of a case until at least three services have been taken upon the defendants which is the practice in the High Court and I would like this to be followed in the Courts below before the case is allowed to proceed ex parte, but as I said I will assume that there was some good service according to law. But even then a defendant may give a good reason for non- appearance. He may tell the Court that as a matter of fact he was unaware of the suit which means that he never saw any paper pasted on the outer door of his house. If the Court believes him it follows that he could not be aware of the suit and in such a case though there was good service there is sufficient cause for the non-appearance of the party, and in such a case the Court ought to set aside the ex parte decree.

(2.) IN Arunachala Aiyar V/s. Subbaramiah (1922) ILR 46 M 60 : 43 MLJ 632, Schwabe, C. J., and Wallace, J., held that this ought to be the attitude of the Court in dealing with an application of this kind though no doubt there the facts were somewhat different. The same view was taken by the same Bench in Lakshminarayana V/s. Standard Oil Co. of New York (1933) 44 MLJ 488 though again the facts are somewhat different. Whether the 1 defendant was aware of the decree after the passing of the decree and partial adjustment by the 2nd defendant is irrelevant except for the purpose of deciding whether the petition is barred by limitation. There is no finding by the District Munsif that the petitioner became aware of the decree on or before a particular date. It is therefore clear to me that the District Munsif did not refer to the mortgage document and the 1st defendant being aware of the decree for the purpose of limitation. The application for the copy of the mortgage itself was made after the filing of the petition. If it is not useful for the purpose of limitation it is irrelevant for any other purpose. I therefore think the District Munsif has not addressed himself to the question that has to be decided in an application of this sort. On appeal the District Judge says : "Appellant was twice affixed, his coexecutant's (second defendant s) property was attached before judgment. I cannot believe his statement that he had no knowledge of the suit until more than a year after the decree." The statement that the appellant was twice affixed only amounts to saying that there was service which was good according to law, a matter with which I agree. The next statement "his co-defendant's property was attached before judgment" seems to be irrelevant. Assuming that a man heard of the attachment of a co-defendant's property, it does not follow that he has evaded service or that he abstained from appearing without proper cause. It may be he was waiting for being served and never got the summons. The next statement of the District Judge that he cannot believe the petitioner's statement that he had no knowledge of the suit until more than a year after a decree again leads to no conclusion. Unless the District Judge finds positively that the petitioner was aware of the decree at a time which was more than a month before the petition, it is not barred by limitation. And apart from the limitation the knowledge of the suit after a decree is irrelevant for any other purpose. I therefore think the District Judge also has not addressed himself to the proper question. The case Sankaralinga Mudali V/s. Ratnasabapathi Mudali (1897) ILR 21 M 324 : 8 MLJ 58 only shows that an Amin is justified in affixing the summons to the door if there is no prospect of his being able to serve the defendant within a reasonable time. I assume this point in favour of the respondent in this case. IN Abraham Pillai V/s. Donald Smith (1906) ILR 29 M 324 it was laid down that summons if possible must be served in person and that substituted service should be ordered only when reasonable grounds exist for believing that defendant is keeping out of the way to avoid service or for other reasons, he cannot be served in the ordinary way. Because these conditions are not fulfilled the High Court interfered in revision. It is true the present case is not a case of substituted service and I have held that the service on the door by affixture was good service but still as the Courts below have not considered the question whether sufficient cause was shown by the defendant for non- appearance, I hold it is an irregularity justifying my interference in revision. IN Abraham Pillai V/s. Donald Smith (1906) ILR 29 M 324 the High Court, itself set aside the ex parte decree. A similar view was taken in Nagari Rasappa Setti v. Namburi Fenkataratnam (1913) MWN 1028though I keep before my mind the fact that the revision petition in that case was a petition under Section 25 of the Small Cause Courts Act. Waller, J., seems to have taken a similar view in Civil Revision Petition No. 745 of 1924. IN Bapurao Sitaram V/s. Sadbu Bhiva (1922) ILR 47 B 485 it was pointed out that even for the purposes of limitation a vague knowledge that a decree had been passed by some Court is not enough. It must be found that the defendant had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular sum. I agree with this view of Macleod, C. J., and Crump, J. A vague suspicion that the defendant must have heard of some decree is not enough to dismiss his petition on the ground that it is barred by limitation. It is true that the view in Abraham Pillai V/s. Donald Smith (1906) ILR 29 M 324 was not fully concurred in Silaram v. Kaiandi Patra (1911) 13 IC 127, Pilchayya V/s. Mahomed Abdul Kareem and Kasivisvanathan Chetty V/s. A.S.P.L.S. Somasundaram Chetty (1921) 42 MLJ 422. IN Sitaram V/s. Kalandi Patra (1911) 13 IC 127 the defendant left Bengal for the Madras Presidency. It was held there was good service but the question whether there was sufficient cause for non-appearance otherwise was not discussed. The only point discussed is whether the Amin's affixture of the summons was proper. This case was followed in Pitchayya V/s. Mahomed Abdul Kareem . IN Fiswanathan Chetty V/s. Arunachallam Chetty the defendant had gone to a foreign territory. Substituted service was held to be proper and no other question was discussed. The same remarks apply to Basavayya V/s. Kistna Brahmam (1914) 1 L. W. 351. IN Bhaichand Ful Chand V/s. Dawood Ayub (1923) 76 IC 60 the defendant had notice. The only question is whether he could not attend on account of illness and the High Court refused to interfere in revision. Following Abraham Pillai V/s. Donald Smith (1906) ILR 29 M 324 and the principle laid down in Arunachella Aiyar v. Subbaramiah (1922) ILR 46 M 60 : 43 MLJ 632 and Lakshminarayana V/s. Standard Oil Co. of New York I hold I am entitled to interfere in revision. I find that the defendant was not as a matter of fact aware of the suit and showed sufficient cause for non-appearance. I set aside the order of the Courts below and direct the District Munsif to proceed with the suit according to law only so far as 1st defendant is concerned. But as I have no desire to be unduly lenient to the petitioner, the costs in all the Courts will abide the result. The security already furnished by the petitioner will continue till the disposal of the suit.