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1979 DIGILAW 248 (ALL)

Anant Ram v. Sumit Narain

1979-02-28

H.N.AGARWAL

body1979
JUDGMENT H.N. Agarwal, Member. - This is a reference, made by the Additional Commissioner, Allahabad Division, recommending that the revision filed by Anant Ram, against the order of the Judicial Officer, Etawah, dated August 23, 1973, In a case under Section 176 of Z.A. and L.R. Act, may be rejected. 2. I have heard that learned counsel for the revisionist and have gone through the record. 3. The opposite parties have not appeared in spite of due service. 4. The revisionist, Anant Ram had filed a suit for division of holding under Section 176 of Z.A. and L.R. Act impleading Sunit Narain, Sadahan Singh and Gaon Sabha as defendants. The suit was decreed ex parte on November 21, 1972 and a preliminary decree was ordered to be prepared in accordance with the shares of the parties. On November 24, 1972 Sunit Narain filed an application for setting aside the ex parte decree on the ground that there was no due service of the summons. By the impugned order the trial court has allowed this application and set aside the ex parte decree. 5. The trial court has observed as follows in the order: "On examination of the service on the summonses, it is found that it is not at all sufficient. The service on the applicant defendant No. 1 is to the effect that the summons was affixed on the out door as he was out of station. This is no service. The summons is affixed on the out door only when the defendant refuses to acknowledge the same as provided under Section 5 and 17, C.P.C." 6. The trial court is in error in applying the provisions of the Civil Procedure Code to service of summons in revenue cases. The provisions of the Civil Procedure Code apply only where there is specific provision to this effect or where there are no alternative provisions in the U.P. Z.A. and L.R. Act, U.P. Land Revenue Act or the U.P. Revenue Court Manual. The U.P. Revenue Court manual contains Chapter II, Rules relating to summons and processes which are applicable to the revenue courts. Rule 74 and Rule 75 of this Manual are as follows:- "74. The U.P. Revenue Court manual contains Chapter II, Rules relating to summons and processes which are applicable to the revenue courts. Rule 74 and Rule 75 of this Manual are as follows:- "74. If the person to whom the summons is addressed is absent and process server after using all due, and reasonable diligence cannot find him or his agent or any adult member of his family, he shall affix a copy of the summons to the outer door or other conspicuous part of the house. 75. If the summons be attached to the door of a house, and acknowledgement of its being posted shall be taken; if in a town from the respectable neighbours, and if in a village as far as possible from (1) the (Pradhan or up-Pradhan) and (2) (the Patwari or Chaukidar)." Thus the trial court should have considered the effect of Rules 74 and 75 rather than of Order 5 and 17 Civil Procedure Code. Under Rule 74 service by affixation on the out door is perfectly legal when the person to the served was out of station. However, whether such service is genuine and not fictitious, can be determined by examining the process-server and the witnesses of service, as provided under Rule 75. 7. The result is that I allow the revision and set aside the impugned order. The trial court shall now proceed to decide the application for setting aside the ex parte decree after considering the provisions of the Revenue Court Manual and after examining the process-server and the witnesses or service.