Jainarayan Singh v. Kedar Singh & Ors.

appearing on behalf of the petitioner. This civil revision application is directed against the order dated 17.1.2013 passed by the learned Additional District Judge-V, Siwan in Civil Misc. Appeal No.34 of 2012, whereby the learned Judge has been pleased to allow the appeal filed by the defendant-appellant-opposite parties herein under Order 43 rule 1(d) of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) for setting aside the ex-parte decree. Patna High Court C.R. No.26 of 2013 (3) dt.15-03-2013 2 The facts of the case in brief is that the suit in question was filed by the petitioner for redemption of mortgage giving rise to Mortgage Suit No.284 of 1968. It is not in contest that the suit was decreed in favour of the plaintiff who is petitioner before this Court under a preliminary decree dated

8.8.1981. The opposite parties 1st set preferred an appeal against the preliminary decree giving rise to Title Appeal No.79 of 1981 and which was dismissed for default on 26.1.1983 and the restoration application bearing Misc. Case No.20 of 1986 filed for restoration of the appeal was also dismissed on 28.3.1992. The defendant-opposite parties never chose to question the said orders and the preliminary decree attained finality. On an application filed by the petitioner towards the final decree proceedings arising out of the suit, notices were issued and thereafter final decree was passed on 11.1.1993 which was not challenged. Following the decree, delivery of possession of the suit property took place. The petitioner thereafter filed an application for mesne profits and in which notice was issued to the defendant-judgment debtors, who again did not choose to appear. The final decree was sealed and signed on 30.3.2007 allowing the mesne profits in favour of the petitioner following which, the petitioner filed a Money Execution Case No.9 of Patna High Court C.R. No.26 of 2013 (3) dt.15-03-2013 3

2007. At this stage the judgment-debtor preferred an application under Order 9 rule 13 of the Code giving rise to Misc. Case No.35 of 2009 and the learned trial court after considering the materials on record on the issue of service of summons, while opining that there was no defect in the service of summons dismissed the miscellaneous case on 2.11.2012. The judgment debtor being aggrieved by the order dated 2.11.2012 preferred Civil Misc. Appeal No.34 of 2012 under Order 43 rule 1(d) of the Code and which has been allowed by the order impugned dated

17.1.2013 and hence the present application. Mr. Abhimanyu Sharma, learned counsel appearing on behalf of the petitioner has submitted that the judgment- debtors having participated in the suit in which preliminary decree was passed on 8.8.1981 and after preferring appeal which was dismissed for non-prosecution, judgment-debtor abandoned the contest and thus they cannot take refuge under the plea of absence of notice. It is further submitted that the learned trial court after examining the materials on record and recording satisfaction upon the service of summons, has rejected the miscellaneous case preferred by the judgment debtors under Order 9 rule 13 of the Code and which has been incorrectly set aside in appeal by the appellate court below. It is thus submitted Patna High Court C.R. No.26 of 2013 (3) dt.15-03-2013 4 that the order under challenge being contrary to the factual position, the same is unsustainable. I have heard Mr. Sharma, learned counsel appearing on behalf of the petitioner and have perused the materials on record. The only thing relevant in the matter arising from a proceeding under Order 9 rule 13 of the Code is to ensure whether there was a valid service of summons on the defendants in terms of the provisions of Order 5 rules 17 to 20 of the Code and/or whether despite service of summons the defendants were prevented by sufficient cause in contesting the matter. In so far as the contest is concerned, perusal of the order impugned manifests that the judgment-debtors were not opposed to the redemption of mortgage as per the preliminary decree and to the delivery of possession of the mortgaged property. The contest is limited to the prayer for mesne profits. Whereas it is the case of the judgment-debtors that no notice was served upon them on such application, the plea is being contested by the decree-holders. The order of the learned trial court has been placed in the proceedings and a perusal whereof manifests that the notice issued to the judgment-debtors was stated to have been served upon them on the identification made by the petitioner himself. Although there is one other independent witness by the name of Patna High Court C.R. No.26 of 2013 (3) dt.15-03-2013 5 Ekbali Singh. Even the other witness to the process is a contestant in the suit, namely, Nirbhay Kumar Singh. On the face of it, the service report is collusive. The other aspects which render the service untenable is non-compliance of the provisions of Order 5 rule 17 of the Code which requires the process server to hang a copy of the notice on the door of the defendants and which has not been carried out as noticed by the appellate court below. The appellate court has also observed that even when the postal peon was not examined by the parties on the issue of service of notice by registered post yet satisfaction has been drawn by the trial court and which is not in consonance with the provisions of Order 5 rule 19 of the Code. The twin aspects as noted above is sufficient to uphold the order impugned and this civil revision application is accordingly disposed of. SKPathak/- (Jyoti Saran, J)