SNEHLATA DEVI Vs. BABU JANARDAN PRASAD SINGH

JUDGEMENT

(1.) The petitioner in this case has moved this Court against an order passed under Order 9, Rule 13, Civil P.C., passed by the lower Appellate Court refusing to set aside an ex parte decree passed by the learned Munsif. One Janardan Prasad Singh and others brought a suit to enforce a simple mortgage bond executed by Shaligram Prasad Singh who and his sons Babu Baghubir Prasad Singh and Ganesh Prasad were impleaded as defendants first party. Srimati Snehlata Devi, the present petitioner, was the purchaser of a portion of the mortgaged property and figured in the suit as defendant second party, and it was she who made an application under Order 9, Rule 13.

(2.) Her allegation was that although her husband's village is Koriapatti, she resides mostly with her mother's sister, who happens to be the widow of a zamindar of Shakarpura, Bahadur pur, and on the date that the summons is said to have been served by the peon she was not at Koriapatti. The learned Munsif in dealing with this petition examined a number of witnesses, and the peon, who is said to have served the summonses, was examined on commission on the ground that he was ill.

(3.) The Commissioner's report was taken in, and the peon's evidence was used for the purpose of coming to the finding that the summonses were properly served. The Courts below have referred to the fact that the other defendants appeared in the suit, although later on they did not contest it, and that is a point to be taken in favour of the plaintiffs opposite party because there was no object in their suppressing summonses against this lady. They have also commented upon the fact that this lady herself has not come forward to give evidence in the Case nor has her husband been examined on the point.