MT SHIVADULARI KUER Vs. BHAGWATI CHARAN SAHU

JUDGEMENT

(1.) This is an application in civil revision against the appellate judgment of the District Judge reversing the order of the Munsif to whom the petitioner had made a successful application under Order 21, Rule 90, Civil P.C., to set aside a sale. It is agreed, having regard to the length of time which took place between the sale and the application to the Munsif, that the application was out of time, but it is contended that that difficulty of time is surmounted by reason of the fact that the sale was altogether a nullity because of the finding of the lower appellate Court on the question of fact as to whether, the notice under Order 21, Rule 22 had been served upon the petitioner.

(2.) Now the trial Court had held upon the evidence that in fact the story of the service of the proceedings under Order 21, Rule 22 was false and that service had in fact been suppressed by the decree-holder. The learned District Judge in reviewing the judgment of the trial Court went into the evidence at length and called attention to evidence which the Munsif had apparently ignored and decided that the Munsif's view of the matter that the service had been suppressed and had not been effected was erroneous. The lower appellate Court decided that the service had in fact been effected and that as to the following of the rules in effecting service such departures from the prescribed course as may have occurred did not affect the substantiality of the service and might be ignored. There is no doubt that the learned lower appellate Court had jurisdiction to decide that the service had been effected and there was no doubt that it had jurisdiction to decide whether such departures from the prescribed practice had or had not as the case might be, materially affected the question of the substantial nature of the service.

(3.) The appellate Court having found that the service had been effected, the case is, in my opinion, at an end, but the argument was pressed here, and ably by Mr. Sarjoo Prasad who attempted to put the case on this basis. He contended that a review of earlier authorities would show that any irregularity in the effecting of the service was equivalent to holding that no service in law had taken place, and it cannot be denied that if no service in law had taken place then the proceedings are void from beginning to end. We have been interested if not entertained by a minute examination of authorities going back over many years. I do not propose to follow the review of those cases in detail but I think the law may be summed up in this way. Where the rules of a Court direct that service shall be effected, where they lay down the procedure for effecting service, it cannot be held that the minutest departure from that procedure invalidates the entire service, and it is a matter of fact in every case within the jurisdiction of a Court below to determine what the departure is and whether, notwithstanding that departure from the prescribed procedure, the service has in fact been effected. One example may be given to illustrate what I mean. Order 5, Rule 20, provides that: Where a person to be served is not found at his address and the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business.