BABANNA SANGAPPA Vs. PARAVA NINGBASAPPA

JUDGEMENT

(1.) A preliminary point has been taken in this appeal that the notice issued to the respondents was returned unserved by the Subordinate Judge of Bagalkot under an endorsement dated March 9, 1925, and that an application for the issue of a fresh notice to the respondents was not made until June 29, 1925. It is contended that this application was made after the period of three months prescribed by Order IX, Rule 5, Civil Procedure Code, and that under the terms of that rule the Court must dismiss the appeal, in spite of the fact that Coyajee J., on July 16, passed an order, excusing the delay and ordered the issue of fresh notice by substituted service upon the respondents.

(2.) In my opinion, however, Order IX, Rule 5, does not apply to appeals. In terms it only applies to suits, and Order IX contains no provision such as appears in Order XXII, Rule 1, that plaintiff shall include an appellant, etc.

(3.) In fact it seems to me clear that the legislature did not intend Order IX to apply to appeals, for Order XLI contains specific rules covering corresponding cases that arise in appeal, e, g, ;__.