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2008 (12) TMI 792

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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ge. 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 wa .....

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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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Order 5 Rules 19 and 20 CPC and hence, the ex parte order passed against this petitioner gets vitiated. It is his further contention that when the statute mandates 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 .....

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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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rdinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [1A Where the Court acting under Sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in .....

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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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ent views expressed by various High Courts and this Court is following the principle laid down by the Supreme Court. One view is that while the Court obtains the subjective satisfaction while applying the provision in Rule 20 that it has to record its reasons indicating its satisfaction and in its absence, the further orders passed by the Court become vitiated. The other divergent opinion in this regard is that it is not a statutory requirement anticipated by law that the Court shall record its .....

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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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114 of the Evidence Act, 1872 operates apart from that under the Post Office Act, 1898. 15. Even though the presumption as to the service is drawn in favour of this respondents, the fact remains that the Court did not presume that summons was served upon this petitioner and did not make its declaration as ordained by Rule 19, but passed on to act under Rule 20. Hence, it is to be held that there was no recording by the Court as "service sufficient" under Rule 19, since the Court has pr .....

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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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. The decision reported in (2007)3MLJ1018 , Doss and Anr. v. Vamanan and Anr. cited by the learned Counsel for the petitioner pertains to the service of summons as to the procedures enumerated in Order 5 Rule 19. In, Kuldip Rai v. Sharan Singh (deceased by LRs) and Ors. an identical view has been echoed that before resorting to the provisions of Order 5 Rule 20 of the Code of Civil Procedure, it is obligatory for the Court to record its satisfaction as enjoined under the statute and the substitu .....

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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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ed 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 wa .....

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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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icer. Hence, the intention of the legislature was gathered by the Full Bench of this Court and it was held that in order to 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 .....

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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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ware of the pendency of the petition and hence, the date of knowledge of the dismissal could not be the relevant factor for the purpose of Order 21 Rule 106 (3) CPC. But in the present case on hand, the petitioner is respondent in execution proceedings and he pleads that no summons was served on him and hence, the decree holders cannot take recourse to this decision. 31. In the light of the decisions of the Supreme Court and the various High Courts, it is held that the Court is not expected to r .....

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