DR. TARINI CHARAN DAS Vs. ON THE DEATH OF RAJANI KANTA CHOUDHURY, HIS HEIRS AND LEGAL REPRESENTATIVES SMTI MINOTI CHOUDHURY @ NIYATI CHOUDHURY & ANOTHER

JUDGEMENT

(1.) (Oral) - This appeal is directed against the order dated 10.8.83 passed by the Assistant District Judge, Barpeta rejecting the petition filed by the appellant under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in Money Suit No. 13 of 1982. The fact of the case, briefly stated, are as follows?

(2.) The main submission of Mr. J.N. Sarma, learned counsel for the appellant is that admittedly no summons was served in the instant case on the defendant-appellant. The summons was served on his son. The appellant did not know of the receipt of the summons or the pendency of the suit till after the ex parte decree was passed. In the petition under Order 9 Rule 13 all these facts were stated at length. The moment the appellant could know of the ex parte decree, he took proper steps for setting aside the same. According to Mr. Sarma, the learned Court below was not justified in accepting the service of summons on the son of the appellant as valid service on the appellant. Mr. K. Choudhury, learned counsel for the respondents on the other hand, submits that the statements made by the appellant in the petition under Order 9 Rule 13 were not correct inasmuch as he himself was present when the summons was served on his son and it was at his instance that the summons was delivered to his son. In other words, his case is that the service of summons on the son was a valid service on the defendant. In reply, counsel for the appellant submits that if the appellant was present at the time when the summons was sought to be served, it should have been served on him. It could not have been served on anybody else. In the event of his refusal, it could have been returned with an endorsement 'refused'. The submission is that Rule 15 of Order 5 has no application to the facts of the present case.

(3.) I have carefully considered the rival submissions. I have perused the relevant rules of Order 5 of the Code of Civil Procedure dealing with service of summons. Rule 12 of Order 5 lays down that the service should be made on the defendant in person, unless he has an agent empowered to accept service. It reads:-