TMI Blog1984 (8) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... alasore in Execution Case No. 14 of 1978. He came and met his Advocate at Balasore on 15-8-1978 and showed the execution notice to him. The advocate inspected the execution record on 28-9-1978 and informed the petitioner that in O. S. No. 122 of 1970 a final decree was passed on 18-11-1976 and the said decree was under execution in Execution Case No. 14 of 1978. It is stated by the petitioner that in the final decree proceeding notice either through process server or by registered post was not served on him and there was fraudulent suppression of service thereof. He also did not receive any notice from any civil Court commissioner who might have been deputed to effect partition. Otherwise he had absolutely no knowledge of the final decree proceeding. It was, therefore, not possible on his part to appear and participate in the said proceeding. He would suffer irreparable loss if the final decree passed ex parte was not set aside. He, therefore, presented a petition under Order 9, Rule 13 of the Civil P.C (hereinafter referred to as the 'Code') (registered as Misc. Case No. 180 of 1978) for setting aside the ex parte final decree passed on 8-11-1977 in O. S. 122 of 1970 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the onus which lay on him nor proved sufficiency of service of notice of the final decree proceeding on the petitioner. ii) In view of the petitioner's denial of service of any notice of the final decree proceeding, the opposite party did not discharge his burden by proving service of notice on the petitioner by the civil Court commissioner during continuance of the final decree proceeding, and iii) There is no material on record of this case that the petitioner appeared and contested in Misc. Case No. 45 of 1976 under Section 151 of the Code. The learned Courts below went wrong in referring to materials not brought on record of this proceeding and denied opportunity to the petitioner to meet the case that he appeared and contested Misc. Case No. 45 of 1976 even if it is assumed that the petitioner contested Misc. Case No. 45 of 1976. There is nothing further on the record to show that he had knowledge of the continuance of the final decree proceeding. According to Mr. Roy, therefore, the final decree having been passed without service of notice on the petitioner according to law, is liable to be set aside. Learned counsel appearing for the opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions raised by the learned counsel and the oral evidence adduced in the case, the following points arise for determination : i) Whether there was sufficient service of notice of the final decree proceeding on the petitioner through the process server of the Court; ii) Whether there was proper service of notice of the aforesaid proceeding on the petitioner by registered post; iii) Whether the civil Court commissioner appointed in the final decree proceeding served notice on the petitioner before making survey of the subject matter of partition; and iv) Whether the petitioner had knowledge of the final decree proceeding because he participated in the proceedings of Misc. Case No. 45 of 1976. 8. According to Order 5, Rule 12 of the Code, service of summons should be made on the defendant personally by the process server of the Court as far as practicable. According to Rule 15, where the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that onus of proof lay on the party who asserted that there was sufficient service of summons. Therefore, such party should prove by examination of the process server that service of summons was duly effected according to the provisions of Order 5 of the Code. In that particular case, the landlord defendant asserted sufficiency of service of summons and so it was held that onus was upon him to prove that there was proper service of summons by examining the process server. In the next case reported in MANU/OR/0128/1963MANU/OR/0128/1963 : 29 (1963) CLT 607, Damodar Patnaik v. Kashinath Subudhi, a different view was taken. In that case there was service of summons under Rule 17 on refusal by the defendant. Thereupon the process server swore an affidavit as contemplated in Rule 19. The plaintiff also proved service by swearing an affidavit. In view of the aforesaid facts, it was held that in a case where the defendant asserted that there was no service by affixture and the plaintiff did not oppose it, the question as to who would examine the process server was somewhat academic. But if the Court recorded an order which satisfied the tests laid down in Order 5, Rule 19 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments were not proved and duly admitted into evidence as exhibits. The Postman was also not examined as a witness. Therefore, the Courts below committed a serious error in recording a finding that there was proper service of notice of the final decree proceeding on the petitioner by registered post. Order 5, Rule 10 of the Code provides that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court. A proviso to Rule 10 was added in Orissa by way of amendment to the following effect : Provided that in any case Court may, of its own motion, or on the application of the plaintiff, send the summons to the defendant by post in addition to the mode of service laid down in this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by postal servant that the defendant refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service. By Civil P.C. (Amendment Act) 1976 (104 of 1976) a new Rule '19A' to Order 5 was introduced providing for simultaneous iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, be held on interpretation of the Orissa amendment to Rule 10 and Rule 19A that on the roof of the facts that a prepaid properly addressed postal cover containing the notice/summons was sent by registered post and when acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the notice/summons is received back by the Court with an endorsement purported to have been made by a postal employee to the effect that the defendant or his agent has refused to take delivery of the postal article containing the notice/summons when tendered to him, the Court issuing the summons shall declare that the notice/summons has been duly served on the defendant and upon such declaration service by registered post on the defendant shall be deemed to be sufficient. If the defendant shall challenge that he did not either receive the notice/summons which was not offered to him nor did he refuse the same, the onus will lie on him to prove the contrary for doing which he may examine the Postman or any other employee of the Postal Department entrusted with the duty of delivering the registered postal cover. 10. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree proceeding. In this view of the matter the finding of the Courts below that the petitioner having participated in Misc. Case No. 45 of 1976 had knowledge of the final decree proceeding cannot be sustained. 13. Since the petitioner came to know of the ex parte final decree on 28-9-1978, the petition is not barred by Article 123 of the Limitation Act. 14. Before parting with the case I would like to observe that material documents were referred to and relied upon by the Courts below in formulating their findings without those documents being admitted into evidence and duly exhibited. The documents were public as well as private. There was no difficulty to admit and exhibit the public documents. It would be a salutary practice if the Courts exhibit documents admitted into evidence by putting specific identifying marks. 15. For the foregoing reasons, I hold that there was no service of notice of the Final decree proceeding on the petitioner and otherwise he had no knowledge thereof. Therefore, the ex parte final decree is set aside subject to payment of costs of ₹ 150/- by the petitioner to the opposite party in the trial court. The revision is ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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