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P. Baskaran Versus Ayyakannu Chettiar and Ors.

2008 (12) TMI 792 - MADRAS HIGH COURT

C.R.P. (NPD) (MD) No. 1986 of 2008 and M.P. (MD) No. 1 of 2008 - Dated:- 22-12-2008 - S. Palanivelu, J. For Appellant: S. Ramesh @ Ramaih, Adv. For Respondents: S. Manohar, Adv. ORDER S. Palanivelu, 1. The petitioner is the eighth respondent in E.P. No. 153 of 1982 in O.S. No. 379 of 1954 on the file of the First Additional District Munsif, Madurai Town. On 05.04.2002, he was set ex parte by the executing Court and he filed an application within 30 days from the date of his knowledge on 28.02.20 .....

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153 of 2008 it is alleged that already these respondents have obtained 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 mortga .....

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s 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 parties who have obtained preliminary decree in the original suit, have no right in the property and the application filed by them for passing final decree has been dismissed. The 19th respondent has filed the counter expressing his consent t .....

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in which she has mentioned her address and it is also accepted that both 13th respondent and this petitioner are residing in the same address, that while the 13th respondent appeared in the execution proceedings, the petitioner could not say that he was unaware of the proceedings and that there is no love lost between this petitioner and his siblings. It is also observed that the petitioner did not examine himself nor anybody else to establish about his ignorance of the Court proceedings and tha .....

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the Court ordered for publication in newspaper for this respondent and some other respondents to be made by 21.02.2002. On 21.02.2002 and 08.03.2002, the time was enlarged for making paper publication for the hearing on 05.04.2002. The paper publication was then produced and this petitioner and others were called absent and set ex parte. 6. The learned Counsel for the petitioner Mr. S.Ramesh @ Ramaiah would strenuously contend that the executing Court has not followed the procedures contained in .....

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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 .....

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he verified affidavit was filed by the Service Officer, there was no necessity for the Court to examine him and even if the declaration as contained in Rule 19 was not expressed explicitly in writing, still the ex parte order is valid, but the Court did not stop with it, it further proceeded under Rule 20 and after satisfaction, it ordered substituted service by paper publication and there is no legal infirmity in any of the stages in the proceedings, that the executing Court as scrupulously fol .....

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icer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the manner as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit. Rule :20.Substituted service: (i) where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the o .....

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the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] 2. Effect of substituted service: Service substituted by order of the Court shall be as effectual 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. W .....

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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-verification of affidavit by the Court bailiff or his examination, after he h .....

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ed to get satisfaction to the fact that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding the service or if the service could not be made in the ordinary way, then the substituted service as suggested in various modes in this Rule shall be ordered. The term "satisfied" has been carefully employed by the legislature in Rule 20, which has got its wider connotation and its legal implication assumes much importance. 11. There are two differ .....

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reasons as to the satisfaction. 12. The learned Counsel for the petitioner cites the Full Bench decision of this Court reported in: AIR 1970 MAD 271 (V 57 Court 77), Parasurama Odayar v. Appadurai Chetty and Ors., in which this Court has laid down the principles that what is important is that the endorsement of the Court itself should indicate that the Presiding Officer has applied his mind and considers that the summons has been duly served while proceeding under Rule 19. 13. As far as the fact .....

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eturned 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 .....

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lied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the postman as assumed by the High Court. The presumption under Section .....

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oceeded to pass orders under Rule 20. 16. When the Court solicits the procedures under Rule 20, the sine qua non is getting satisfaction as to the fact that there is reason to believe that the defendant is keeping out of the way for avoiding service and that the ordinary way summons could not be served. 17. It is quintessence of the learned Counsel for the petitioner that before passing the order for substituted service, the Court should record its reasons in writing as to the said satisfaction. .....

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lation of principles of natural justice. The said case was decided on the order of assessment levying tax by the Income Tax Officer. 18. He also cites a Division Bench decision of the Allahabad High Court reported in AIR2004All391 , Om Prakash v. Prakash Chand and Ors., in which the learned Judges have held that Order 5 Rule 20 CPC makes it clear that substituted service is permissible, provided, the Court records reasons after being fully satisfied that service cannot be effected in an ordinary .....

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21 , 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 .....

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ted service cannot be ordered in a routine manner. 21. Even though two views expressed by the Allahabad, Madhya Pradesh, Calcutta and Punjab and Haryana High Courts, and a learned Judge of this Court, are to the effect that before proceeding to pass orders for substituted service under Rule 20(1) and (1-A), the Court has to satisfy and the said satisfaction should be revealed in writing by the Court by recording the same, the view taken by the Supreme Court and a Division Bench of Patna High Cou .....

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t the substituted service can be resorted to only when the court is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The trial court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial court to order for substituted service. This submission need not detain us any longer. On the facts of the case the court's satisfaction is implicit in the order directing service by publication&q .....

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bly referred to which is reported in: 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 substitut .....

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s 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 pass on to the next stage. The Court further proceeded to observe that from the order sheet it will be clear that several attempts had been made by the plaintiff to have the personal service of summons on defendant No. 2 as on other defendants and when such attempt .....

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sheet cannot be taken advantage of by the appellant to challenge a valid order as made under Rule 20. Such record is not called for under any provision of law. In absence of any other material to the contrary. We have to presume that the Court had been satisfied before it passed the order on the 17the July 1953 for substituted service'. 25. The facts prevailing in the case on hand are also on the same footing. Earlier, as adverted to supra, there had been steps taken by the decree holder to .....

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ected to declare that the summons have been duly served after fulfilling the legal formalities as contained in Rule 19, whereas the Court is anticipated to get satisfaction that there is reason to believe that the defendant is keeping out of the way of avoiding the service, in Rule 20. 27. The Full Bench of this Court in Parasurama Odayar (cited supra) has held that the declaration under Order 19 shall be in writing by recording reasons so as to infer the application of mind by the Presiding Off .....

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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 t .....

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tention of the legislature is gathered in such a way, it has to be inevitably held that no duty is cast upon the Court under Rule 20 to explicitly express its satisfaction by recording the reasons and same ought to be inferred from other circumstances, namely, the earlier hearings where service of summons was either defeated on behalf of the defendant or made impossible by any other means. 29. In such view of this matter, the contention that the Court has to furnish reasons for its satisfaction .....

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