RAJA INUGANTI VENKATA RAYANIM VARU Vs. ALLURI CHINA BAPANNA, REPRESENTED BY HIS NATURAL FATHER ALLURI SOORANNA, UNDER A GENERAL POWER-OF-ATTORNEY

JUDGEMENT

(1.) It is of course desirable that all Courts should observe the mandatory provision in Order 5, Rule 19, Civil Procedure Code, and "either declare that the summons has been duly served or order such further service as it thinks fit." But we do not think that the absence of such an express declaration will involve as a necessary consequence a rinding that a summons has not been duly served. In the present case no less than four summonses were taken out to the appellant and they were all returned with reports that the copies had been affixed because the appellant was absent in some place or other. After the fourth return of the kind, the Court said on 24 March, 1933, "defendant 7 affixed on 15 March, 1933, said to have gone to Tirupattur by the inmates of the house. Called absent. Defendant 7 ex parte." In the circumstances of this case we see no difficulty in saying that there is here an implied, though not an express, declaration of sufficiency of service on the seventh defendant. The decisions in Ashagappa Chetti V/s. Ramanathan Chettiar (1932) 64 M.L.J. 629 and Ramaswami Chettiar v. Chinnappa Chetty (1933) 64 M.L.J. 637 are not in point. Moreover we must agree with the learned Sub-Judge that the appellant really knew all about the suit as it was going on. The mortgagor-defendants were his son-in-law and his grandsons and it is not possible to believe his statements that he knew nothing about the suit until after it has been decreed.

(2.) We agree with the le irned Sub-Judge that the appellant did not prove that he was prevented by any sufficient cause from appearing when the suit came on for trial.

(3.) We therefore dismiss this appeal with costs, and we do so with no compunction, since the appellant has not and never has had any defence of his own to raise. He wants now, he says, to press a plea actually taken at the trial on behalf of the mortgagor-defendants, but not substantiated by their Court guardian.