MT AMNA Vs. RATAN LAL

JUDGEMENT

(1.) This is an appeal from an order of the learned Subordinate Judge, Saharanpur, refusing to set aside an ex parte decree passed in an appeal in which the present appellant was the respondent. That appeal arose out of a suit brought by her for a declaration that a certain property which she claimed to be hers was not liable to be sold at the instance of the opposite party in execution of a decree obtained by him against her husband. She established her claim in the trial Court which declared that the property in dispute belonged to her and not to her husband. The opposite party preferred an appeal to the lower Court (Subordinate Judge, Saharanpur). A summons was issued to the appellant, who is a pardanashin lady. The processserver's report was to the effect, that the appellant, who is a pardanashin lady, was in the house, that she was called out, but did not answer and that accordingly the summons was handed over to her husband's elder brother, Mohammad Bakhslh, who affixed his thumb mark on the back of the summons. On the date fixed for the hearing of the appeal no one appeared on behalf of the respondent (the appellant in this appeal), and an ex parte decree was passed against her allowing the appeal and dismissing her suit. The appellant made an application under Order 41, Rule 21, Civil P.C. for an order to set aside the ex parte decree. She filed her own affidavit swearing that Mohammad Bakhsh never informed her of the process-server having, delivered a summons; nor did she otherwise come to know of the date fixed for the hearing of the appeal in which she was respondent. Mohammad Bakhsh was not examined on behalf of any party. The opposite party filed a counter-affidavit in which the appellant's allegations were traversed. It is however clear that, a denial of the truth of her allegations by one who had no personal knowledge of the matter is not of any value. The lower Court dismissed her application on the solitary ground that: No reason has been shown on behalf of the appellant why her husband's own brother did not inform the appellant of the date of hearing.

(2.) That Court did not apply its mind to the question whether in the circumstances of the case service on Mohammad Bakhsh was due service. Order 41 Rule 21, provides like Order 9, Rule 13, Civil P.C. that where an appeal is heard ex parte and the judgment is pronounced against the respondent, the latter may apply for the appeal being reheard, and, if the Court, is satisfied that the notice was not duly served or that the respondent was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal.

(3.) The appellant's contention is that she was not duly served. This contention has force. Order 5, Rule 15, Civil P.C. as amended by this Court, permits service being effected on a male member of a family only: When the defendant is absent or cannot be personally served and has no agent empowered to accept the service of the summons on his behalf.