TMI Blog1983 (8) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional District Judge, 4th Court, Alipore on Feb. 12, 1983. Being aggrieved, the petitioner has preferred the present revisional application. 2. The opposite party Messrs. Surajmull Nagarmull as plaintiff filed Title Suit No. 264 of 1978 for eviction of the petitioner. The said suit was decreed ex parte on Mar. 25, 1980. On Feb. 13, 1981 petitioner filed an application under Order 9, Rule 13 read with Section 151 of the Code alleging that no summons had been served upon him. He came to know of the ex parte decree on Feb. 12, 1981. Petitioner prayed for setting aside the decree. In the written objection the opposite party contended that summons had been duly served on the petitioner and as the petitioner failed to appear the ex parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Sen that the evidence regarding the attempt of the bailiff to deliver possession on June 17, 1980 and the alleged resistance by the petitioner cannot be relied upon in view of material discrepancies. The finding that the petitioner became aware of the decree On June 17, 1980 is not supported by the evidence on record. According to Mr. Sen, there was no reason, in the circumstances of the present case, why the petitioner would not come to court earlier had he been aware of the decree. The petitioner camp to know of the decree on Feb. 12, 1981 and immediately rushed to court and filed the application on Feb. 13, 1981. 6. Mr. Roy Chowdhury, learned counsel for the opposite party, has submitted that the petitioner was avoiding the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed post was also not considered satisfactory. The plaintiff made application for substituted service and the prayer was allowed. Summons was returned after service under Order 5. Rule 20 of the Code. As the defendant did not appear, the suit was decreed ex parte on Mar. 25, 1980. The plaintiff put the decree into execution on May 27, 1980 in Title Execution Case No. 29 of 1980. The Process Server returned the writ unexecuted with the report that on June 17, 1980 at about 8 a.m. when he went to deliver possession he was obstructed by the judgment-debtor. The plaintiff filed an application under Order 21, Rule 97 of the Code on July 24, 1980 but the said application was dismissed as it had been filed after the lapse of 30 days of the obstruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Munsif was quite justified in not placing any reliance on it. 9. As regards service through registered post, the registered cover shows that the addressee was not met on different occasions. There was thus no tender of the registered cover to the addressee. It is true that under the law service of summons under Order 5, Rule 20 of the Code shall be as effectual as if it had been made on the defendant person-ally. 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. Before such satisfaction, the Court has to consider the case carefully having rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on June 17, 1980 at about 8 a.m. when he went to deliver possession, he was obstructed by the petitioner in presence of O. P. W. 2. In the certified copy of Ext. E the figure '8' was wrongly written as '4'. In his evidence O. P. W. 1 Tarapada Ganguly at first stated that he went at 8 a.m. Thereafter he stated that due to mistake he told the time as 8 a.m. O. P. W. 2 Ajit Kumar Chakraborty in his evidence stated that obstruction to deliver possession took place in his presence at 4 p.m. O. P. W. 1 the petitioner denied service of summons. He also denied that he obstructed the execution of the decree. He stated that he came to know of the decree on 12-2-1981 and made searches in court and thereafter filed the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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