TMI Blog2008 (12) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... ined delivery order in the execution proceedings and in order to protract the matter, this petition has been filed with false allegations and that it is incorrect to state that the 4th respondent informed him about the ex parte order passed on 28.02.2008. 3.(i) The averments found in the counter of the 12th respondent in E.A. No. 153 of 2008 go to the effect that originally, O.S. No. 379 of 1954 was filed for redemption of mortgage. This petitioner and other were in possession of the property in the capacity of mortgagees. Preliminary decree was passed in the suit on 22.03.1956. An Appeal in A.S. No. 53 of 1956 was filed which suffered dismissal and a Second Appeal in S.A. No. 784 of 1957 was filed and the same was also dismissed by the High Court confirming the preliminary decree. 3.(ii) This respondent filed A.S. No. 59 of 1966 which was allowed with modifications. Then, the decree holders filed Second Appeal which was dismissed by this Court. No final decree has been passed afterwards. This respondent filed two applications to receive the mortgage amount and another application. In all the three applications, preliminary decree was passed by the Taluk Munsif Court. The par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the Court to follow and observe the procedures specifically incorporated in the Civil Procedure Code, any deviation in this regard would invalidate the consequent orders also, passed by the Court. 7. He also states that under Order 5 Rule 17, when the Court bailiff returned the notice to the Court in the cases of refusal of accepting the service or the respondent could not be found, then the Court shall proceed to act under Rule 19 of Order 5 CPC and this provision casts a duty on the Court to declare that summons was duly served by recording its reasons and if the Court feels otherwise, it may order by other modes. He further would say that the Court after exhausting the procedure adumbrated under Rule 19, has to proceed to abide by the procedure laid down in Rule 20 and before passing the order for substituted service, it ought to record reasons for its satisfaction to the effect that there is reason to believe that the defendant is keeping out of the way of avoiding service, hence substituted service has to be ordered. He stresses a point that in case if the Court fails to record the reasons for such satisfaction, the ex parte order passed against the defendant becomes a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectual as if had been made on the defendant personally. 3. Where substituted service, time for appearance to be fixed: Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require 9. When Rule 19 is consciously read, it could be discerned that while the Court bailiff returns the notice verified by the affidavit, it is the discretion of the Court to examine him and if such verified affidavit is not produced, it is incumbent upon the Court to examine him. In case, if the Court bailiff was examined, the Court must declare that the summons has been duly served and in case, no such declaration is made, the Court has to proceed to order service by other modes as it deems fit. 10. (i).In this context, judicial pronouncements have uniformly declared that the Court shall record its reasons for such a declaration. If the summons was duly served and the Court records such declaration after applying its mind, the service of summons ends with it and it is then open to the Court to set the defendant ex parte. In case, if such declaration could not be made by the Court for the reasons that in case of non-v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affixed the notice on the outer door of his residence. Further, the cover containing the summons sent by the registered post from the Court to this petitioner was returned to the Court by endorsement as not claimed . Anterior to making such endorsement, an other reference is found as intimation . Hence, while the postman went to the house of the petitioner, he was not available and he left intimation to the inmates of the house and registered cover was retained in the post office for a period prescribed and since it was not claimed by the addressee, it was returned to the Court. 14. In this juncture, the learned Counsel for the decree holders would say that a presumption has to be drawn under Section 27 of the Post Office Act and Section 114 of the Evidence Act that the summons was duly served on the petitioner. For this proposition, he relied upon a decision of the Supreme Court reported in P.T. Thomas v. Thomas Job AIR2005SC3575 . The relevant portion of the said judgment goes thus: 15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act, 1898. The requirement of the section has been complied with in this case. The reasoning of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied that service cannot be effected in an ordinary manner and it cannot be taken as a matter of right. In the said decision, another ruling of Division Bench of the Calcutta High Court has also been referred to in AIR1984Cal82 , Teharoochand v. Surajmull Nagarmull, in which it is held that before issuing summons under Order 5 Rule 20 of the Code, the Court is to be satisfied that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. 19. In AIR1999MP21 , Satish Construction Company v. Allahabad Bank, the learned singe Judge has rendered his observation in a similar way that while passing Order 5 Rule 20 the Court has to record its satisfaction that the defendant was keeping out of the way for the purpose of avoiding service or in the alternative, it is required to record its satisfaction that for any other reasons, the summons could not be served in ordinary way and that absence of such recording would render the ex parte order improper. 20. The decision reported in (2007)3MLJ1018 , Doss and Anr. v. Vamanan and Anr. cited by the learned Counsel for the petitioner pertains to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n: AIR1967Pat280 , Raj Kumar Singh v. Gourishankar Jhunjhunwala and Ors. The learned Judge, who disposed of the miscellaneous appeal in this Court, held that there was a justification for step being taken under Order 5 Rule 20 of the Code on the facts and circumstances of the case. But learned Counsel contended that it was not the satisfaction of the appellate Court but the satisfaction of the trial Court which was a pre-requisite condition before any substituted service could be legally ordered for under Rule 20. This contention is right, but, all the same, it does not appear from the order sheet nor from any other material that the trial Court in this case was not so satisfied before he passed the order on the 17th July, 1953 for substituted service. It is not necessary and that has also not been prescribed in any provision of the Code of Civil Procedure that the Court will have to record the reasons for such satisfaction or even the fact that it was so satisfied before he can make a valid order under Rule 20 of Order 5 for substituted service 24. As per the Patna High Court, Rule 20 has not specifically directed the Court to record its reason for the satisfaction and then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o declare the opinion of the Court, it has to record its reasons as to such declaration. It is laid down in unequivocal terms in the said decision that the declaration must be expressly divulged by the Court in any of the form known to it. But, significantly, such obligation of recording reasons was not the intention of the legislature, while it requires the Court to function under Rule 20. Had the intention of the legislature been to mandate the Court to record reasons to reveal its satisfaction, it might have introduced any other term in the place of the word satisfied and it might have been the same words as after declaration . The use of different words in both the Rules 19 and 20 would explicitly make more reasonable premise to the effect that the satisfaction might be an implicit, as held by the Supreme Court (supra) and not in express terms. In other words, opening sentence of Rule 20 might have been as after the Court having declared that there is reason to believe that the defendant is keeping out of the ways for the purpose of avoiding service , instead of having placed the words as whether the Court is satisfied that , if really the legislature was intending to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
