Decided on January 03,1951

Nripendra Narayan Choudhuri And Another Appellant
Mt. Chandramani Baruani Respondents


Ram Labhaya, J. - (1.)THIS is a miscellaneous appeal from the order of the Subordinate Judge, L.A.D., Dhubri, dated 15 -1 -1949 disallowing an application under O. 41, R. 21 , Civil P.C., for the re -hearing of an appeal heard and decided ex parte. The appeal was disposed of on 5 -8 -1946. The petition for the re -hearing of the appeal was put in on 28 -10 -1946. The applicants, who were respondents in the appeal, allege that they never received any notice of appeal from the Court and had in fact no notice of it. They were informed by Sjt. Kulada Charan Lahiri, Pleader of Goalpara, on 17 -9 -1946 that an ex parte decree had been passed against them on appeal.
(2.)THE application was resisted. It was pointed oat that there was due service and that the application was barred by time. The learned Subordinate Judge came to the conclusion that there was due service of notice and that this service had been accepted by the Court. He farther found that the application was time barred and the allegation that the applicants before him learnt about the ex parte decree on 17 -9 -1946 had not been substantiated.
The correctness of the findings arrived at by the learned Subordinate Judge is assailed by the Learned Counsel for the appellants. We have heard the Learned Counsel on both Bides. We are not satisfied that there was due service on the present appellants who were the respondents before the learned Subordinate Judge. Notice on appeal was issued. The process peon reported that as Nripendra Narayan Choudhury and Sourindra Narayan Choudhury were not at home, notices were affixed on the Kulchery house in the presence of two persons Kishori Babu and Asmatulla. The process peon, it has been argued, acted under O. 5, R. 17, Civil P.C. His report, however, does not show that the present appellants or their agents refused to Sign the acknowledgment or that after using all due and reasonable diligence he could not find them. In these circumstances there was no justification for affixing copies of summons on the kutchery of the appellants. It is true that the Court accepted the report. But in doing so it failed to comply with the provisions contained in R. 19, O. 5. There was no affidavit giving the circumstances under which service was affected under R. 17. The learned Judge did not examine the process -server either on this point. The provisions contained in R. 17 and R. 19 were thus disregarded. Circumstances justifying service in the manner laid down in R. 17 did not exist and the Court in accepting service did not act judicially or in accordance with law. There was thus no due service within the meaning of Art. 169, Limitation Act. The period of limitation for an application for the re -hearing of appeal would thus commence from the date when the applicants (new applicants) got knowledge of the decree against them.

(3.)SO far as the question of knowledge of the appellants is concerned, they produced two witnesses. The learned Subordinate Judge came to the conclusion that the testimony of these witnesses did not establish the allegations made in the application for the re -hearing of the appeal. The Learned Counsel for the appellants contends that all evidence was not before the Court. Nripendra Narayan Choudhury was not present in Court on the date the evidence was taken on the application. He was suffering from dysentery and was unable to attend the Court. A medical certificate was also produced in support of the statement and on the ground of his illness an adjournment was prayed for. It was also stated that the other two witnesses were present. The implication was that Nripendra Narayan Choudhury was also to appear as a witness. The certificate produced shows that Nripendra Babu had been under treatment for dysentery for three days before the date of hearing. There was, in these circumstances, reasonable cause for the prayer for adjournment, which unfortunately was refused. Nripendra Narayan could not be examined and thus the whole of the evidence was not before the learned Subordinate Judge. It is not possible, therefore, to decide the question whether the appellants got knowledge of the ex parte decree on 17 -9 -1946, as alleged by them in their application.

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