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2007 DIGILAW 521 (KER)

Ambujakshan Alias Ambu v. K. R. Lakshmanan

2007-08-14

PIUS C.KURIAKOSE

body2007
Judgment :- Order impugned in this Civil revision Petition is the order passed by the Execution Court dismissing E.A.No.897/2001 which was an application to set aside an ex parte order passed against the petitioner in a proceeding for execution of a decree of injunction and also the judgment of the lower appellate court confirming the order in E.A.No.897/2001. Concededly the petitioner was not a party to the suit. However he was fastened with liability under the decree on the reason that the decree was passed in a representative suit wherein public notice had been issued under Order 1 Rule 8 CPC. Alleging that the petitioner violated the decree, the Execution Petition was filed arraying the petitioner as the 3rd respondent. The ground raised by the petitioner for setting aside the ex-parte decree was that he had not been served with notice. It is not disputed that the petitioner had not been served with notice directly. Service on the petitioner was completed by service on his sister-in-law one Prasanna, the third respondent in this Civil Revision Petition. The case of the plaintiff/ decree holder is that the petitioner and the sister in law are residing in the same house having the name 'Panakkal'. The petitioner had a specific case before the lower appellate court that he and his sister in law Smt. Prasanna are not residing in the same house. The learned District Judge observed that the appellant (referring to the petitioner) has no case that the person to whom notice is served was not residing along with him or that the said Prasanna has not been served with notice. The above observation of the learned District Judge appears to be incorrect. The only substantial ground raised in the appeal memorandum is that though the names of houses occupied by the petitioner and Smt. Prasanna are same, they are living in two separate houses. 2. Smt. Mary Beena Joseph, the learned counsel for the petitioner would submit that the door number of the house in which the petitioner is residing is 171 in Ward No.7 of Nattika Panchayat and the door number of the house occupied by Smt. Prasanna is 237 in the same ward of the same panchayat. It is order V Rule 15 which was invoked by the learned Munsiff for serving notice on the petitioner. Order V Rule 15 reads as follows: "15. It is order V Rule 15 which was invoked by the learned Munsiff for serving notice on the petitioner. Order V Rule 15 reads as follows: "15. Where service may be on an adult member of defendant's family:- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. 3. In order that Order V Rule 15 shall apply, it is obligatory that the person on whom service is actually made and the person to whom summon is addressed shall be residing together. The learned district Judge has inter alia observed that at any rate no evidence has been adduced by the petitioner to show that Smt. Prasanna and the petitioner were residing in two different houses. Before me the learned counsel for the petitioner placed copies of the relevant part of the electoral roll relating to the Natika Assembly Constituency which will certainly show that the claim of the petitioner that he and his sister in law are residing in two different houses is well founded. Under the above circumstances, I find that there was no proper service of notice of the Execution Petition on the petitioner. I set aside the order dated 18.2.2002 passed by the learned Munsiff and also the judgment of the District Judge in CMA No.540/2002 and allow E.A. No.897/2001. I also set aside the order of arrest passed in the E.P. against the petitioner. The petitioner will file objection to the Execution Petition before the learned Munsiff within three weeks of receiving a copy of this judgment. Once objections are filed, the learned Munsiff will enquire into the objection and pass fresh orders on the E.P. after hearing both sides. The Civil Revision Petition is allowed as above.