SUBRAMANIA IYER Vs. NKRISHNASWAMI NAIDU

JUDGEMENT

(1.) This appeal is against an order refusing to set aside an ex parte decree which was passed against the two defendants, the appellants on 13 March, 1924. Neither of the defendants were personally served. The final attempt to serve them was on 2nd February, 1924, at their houses. The return of the process-server is to the effect that as both were absent the process was affixed to their residence. As there seemed some doubt as to whether both were living in the same house we sent the case down to the lower Court for a finding as to whether the two defendants were at the time of service living in one house, and if not, to which house did the process-server affix the process. The findings are that the defendants were living in different house's and that the process was affixed to each house, Objections have been put into these findings. We can see no reason for not accepting the findings.

(2.) In his affidavit in this petition to set aside the ex parte, decree, the 1 defendant stated that 2nd defendant was living in the village at the date of the service. In his evidence he stated that the 2nd defendant was in the village on that date. Second defendant did not go into the witness box to say when he came to know of the suit or decree. Obviously 2nd defendant has made out no cause for in deference with the lower Court's order. His silence is sufficient admission that he was aware of the suit.

(3.) First defendant contended that he was absent in Kumbakonam at the time of the service of process and gave evidence that he was absent in Kumbakonam on certain days in January. February and March, 1924. The lower Court is Wrong in stating that he deposed that he went to Kum-bakonam in March only. But apart from that, the evidence is Wholly insufficient to establish that he was prevented by sufficient cause from not appearing when the suit was called on. In his chief examination there is only his vague and un-corroborated statement that he was (sic) in March. Though in cross examination he says he was absent in February also, he does not say how long after the 20 February, 1924, he returned home. He denies that any one informed him of the suit and does not explain how he came to know about it at all. In his affidavit filed with the petition to set aside the decree he says he was living in Kumbakonam but in his evidence he gives his address as Konerirajapuram and deposes only that he paid occasional visit's to Kumbakonam. We have found that the 2nd defendant knew of the suit. It is improbable that neither he nor the inmates of the 1 defendant's house informed the 1 defendant also of the suit, and the 1 defendant's vagueness as to whence he got information strengthens our view that he was aware of the suit all along.