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1995 DIGILAW 669 (PAT)

Lalji Banra v. Sukhram Banra

1995-12-07

GURUSHARAN SHARMA

body1995
Judgment Gurusharan Sharma, J. 1. Title Suit No. 39 of 1980 filed by the plaintiff-petitioner for specific performance of contract against the defendants 1 and 2 was decreed exparte on 8.12.1981. Thereafter Execution Case No. 4 of 1982 was levied by the decree-holder and on 8.10.1983 sale deed on behalf of the Judgment-Debtor, defendant No.1, was executed in favour of the decree-holder by the Court. The subsequent purchaser, who was defendant No. 2 in the suit, on 3.1.1985 filed an application under Order IX Rule 13 of the Civil Procedure Code before the Subordinate Judge, Chaibasa, for setting aside the aforesaid exparte decree. It was registered as Miscellaneous Case No. 1 of 1983. By the impugned order dated 8.12.1989 the said Miscellaneous Case has been allowed and the exparte decree has been set aside. 2. Learned Counsel for the petitioner submitted that since the date of knowledge of the decree was not disclosed and it was simply stated that the applicant came to know about the exparte decree on service of notice in a proceeding under Sec. 145 Criminal Procedure Code from the court of the Sub-divisional Magistrate, Saraikella, vide Misc. Case No. 352 of 1994. the Miscellaneous case was barred by time. Secondly, after service of summons on the defendants by publication in the District Gazette under Order V Rule 20 of the Civil Procedure Code, it cannot be said that the applicant had no knowledge about the suit. 3. Mr. N.K. Prasad Senior Counsel for the opposite party on the other hand submitted that the applicant opposite party filed a petition under Order IX Rule 13 of the Civil Procedure Code immediately after receiving information about the exparte decree on service of notice relating to a proceeding order Sec. 145 of the Criminal Procedure Code. Further, the substituted service of notice by publication in the District Gazette was not proper, as Sub-rule(a) of Order V Rule 20 of the Code required such publication in a daily news paper circulating in the locality and, therefore, the court below has rightly set aside the exparte decree. 4. It appears that firstly the plaintiff filed Title Suit No. 13 of 1978 for specific performance of contract in the court of Munsif at Saraikella. 4. It appears that firstly the plaintiff filed Title Suit No. 13 of 1978 for specific performance of contract in the court of Munsif at Saraikella. On receipt of summons both defendants 1 and 2 appeared in the said suit and raised preliminary objection regarding valuation of the suit and thereby pecuniary jurisdiction of the court of Munsif to try the suit. The learned Munsif asked the plaintiff to ventilate his grievance before the competent court of jurisdiction and accordingly the plaintiff withdrew the suit. Thereafter the defendant No. 2, who was the applicant before the court below, did not get any information about the filing of Title Suit No. 39 of 1980 before the Subordinate Judge, Chaibasa and no summon was ever served upon him. He continued in cultivating possession of the suit land since after purchasing the same from the defendant No. 1, Only recently from the notice under Sec. 145 Cr. P.C. proceeding he came to know about the suit and the exparte decree passed therein. On inspection of records of the suit he came to know that proper publication as required under Order V Rule 20 of the Code was not made and as such there was no valid service of summon notice on the defendant No. 2. 5. The decree-holder-opposite party No. 1 filed objection stating, inter alia, that the defendant No. 2 applicant refused to receive the summon issued to him in Title Suit No. 39 of 1980 and thereafter publication of notice under Order V Rule 20 of the Code was made in the District Gazette. In the Execution Case also the judgment-debtor did not appear and as such the court executed the sale deed in favour of the decree holder. 6. It appears that in the Miscellaneous Case the applicant examined two witnesses including himself as A.P.W. 2, whereas the decree holder-opposite party No. 1 therein neither examined himself nor the process server who according to him had gone to serve summons upon the applicant-defendant No. 2 in the suit and reported refusal to accept the summon by him. 7. 6. It appears that in the Miscellaneous Case the applicant examined two witnesses including himself as A.P.W. 2, whereas the decree holder-opposite party No. 1 therein neither examined himself nor the process server who according to him had gone to serve summons upon the applicant-defendant No. 2 in the suit and reported refusal to accept the summon by him. 7. I find that in paragraphs- 5 and 9 of the petition under Order IX Rule 13 it has been stated that only recently the applicant came to know on receipt of notice in connection with Miscellaneous Case No. 332 of 1984 about the exparte decree and thereafter without any delay he filed the petition for setting aside the exparte decree. In his deposition as A.P.W. 2, the applicant, reiterated that he received notice and got the information about the exparte decree recently through a notice under Sec. 145 and immediately thereafter filed this Miscellaneous Case. Nothing in the cross-examination of this witness was taken by the other side about the delay causing limitation in filing the petition under Order 9 Rule 13 of the Code after receiving such information. As such the court below rightly proceeded on the basis that there was no delay in filing the petition for setting aside the exparte decree. 8. It is the true that Order V Rule 20 (1)(a) of the Code provides publication in a news paper and not in the District Gazette. The court below in the impugned order has mentioned that from the orders dated 22.7.1981 and 10.4.1982 of Title Suit No. 39 of 1980 it is evident that the publication of notice against the defendant No. 2 had taken place in the local District Gazette. In the circumstances, the learned Subordinate Judge has rightly held that such publication was invalid and the defendant No. 2 applicant got no knowledge/information about the institution of the suit and the exparte decree passed therein. 9. In the circumstances, I do not find any reason to interfere with the impugned order. The exparte decree passed by the learned Subordinate Judge in Title Suit No. 39 of 1980 has rightly been set aside. 10. In the result, this Civil Revision application is dismissed. However, there will be no order as to costs.