- (1.) D. K. Seth, J. This appeal arises out of order dated 11th July, 1983 passed by the learned Additional District Judge-1, Sultanpur, in Misc. Case No. 2 of 1983 arising out of an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex pane decree dated 21st May, 1982 passed in Suit No 23 of 1982.
(2.) THE fact of the case relevant for the purpose of disposal of this appeal arc as hereinafter. THE plaintiff- respondent filed an application under Order XXXIII, Rule 1 seeking to institute the suit in forma pauperis. THE said application was allowed on 22nd January, 1982. After the said application was allowed the suit was registered on 16th February, 1982, and was ultimately decred ex parte on 21st May 1982. The appellants thereafter filed an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the decree on the grounds made out in the said application, which was registered as Misc. case No. 2 of 1982. After con tested hearing by an order dated 11th July, 1983 the said Misc Case was dismissed. Against the said order dated 11th July, 1983, present F. A. F. O. No. 152 of 1983 has been preferred by the appellants herein. Mr. Rizvi, learned counsel for the appellant, submitted that since no notices were served upon the defendants/appellants the ex pane decree is liable to be set aside. According to him in view of the provision contained in Rule 8 of Order XXXIII of the Code, after the plaintiff was allowed to sue as indigent person, the suit shall be numbered and registered and the same shall proceed in all other aspects as a suit instituted in ordinary manner. Therefore, though at one point of time the District Government Counsel appeared in the proceedings under Order XXXIII but the same cannot be treated to be an appearance in the suit itself. He had referred to the order-sheet of the suit and submitted that there is nothing to show that the summons were served upon the defendants. He has further pointed out that there is no indication that summons were ever served on the defendants. According to him, therefore the ex pane decree was liable to be set aside.
(3.) THE learned counsel for the plaintiff vehemently opposed the contention of Mr. Rizvi. According to him since the District Government Counsel has participated in the proceedings under Order XXXIII, therefore, the defendants had notice and knowledge of the suit. He had further submitted pointing out to the order sheet of the suit that there were proper service of summons. He had also relied on an application praying for time for filling written statement on behalf of defendant No. 1. He submits that the same clearly indicates that defendants had notice and knowledge of the suit. THE notice of defendant No. 1 would amount to be notice of the other defendants which are all departments of the defendant No. 1. He refers to Order V, Rules 9 and 21 of the Code and the Allahabad amendment of Rule 21. According to him the defendant No. 6 was served by registered post, which is docu ment No. 37/1/gha (2) of the trial court record, being the postal acknowledgement card signed on 27th April, 1982. He also points out to the order dated 30th March, 1982, and submits that the same clearly shows that steps for service by registered post was taken. Since neither undelivered covers nor acknowledgement cards returned, therefore, under the second proviso of Order V, Rule 19-A sub-rule (2) there is a presumption that there was service of summons. He refers to paragraphs 16, 18 and 20 of the application under Order IX, Rule 13 and submits that there is no such averments, that the defendants did not have knowledge. On the contrary the same clearly indicates that the defendants had sufficient notice and knowledge of the suit. He also refers to the decisions reported in 1988 SCD 306, 1989 SCD 401, 1988 SCD 313 and AIR 1944 Pat 103 in support of his contention.;