- (1.) This is an application under Section 115 of the Code of Code of Civil Procedure by the Plaintiff arising out of an order passed under Order 9 Rule 13 of the Code by the Second Additional Munsif of Allahabad by which an ex parte decree has been set aside and the suit restored to its original number. (sic) A good deal of time of the Court has been vasted over the matter on account of the fa(sic) that the learned Munsif has not tried to appreciate the scope of Order 9 Rule 13 and he has used rather loose language in arriving at the conclusion that in the interest of justice (sic) requires that the suit should be reheard.
(2.) The facts are these. The suit was instituted by the Plaintiff for recovery of a sum of Rs. 10 from the Defendant on the ground of an alleged slander. Summonses were taken out by the Plaintiff and the Plaintiff accompanied the process server to effect service upon the Defendant. The process report was to the following effect. At a distance of about 100 paces from the house of the Defendant, the Plaintiff pointed out a certain woman and indicated to the process server that she was the Defendant. That woman entered into a house the outer door of which was open. The process server shouted out several times but the woman did not come out. The process server was, therefore, obliged to effect service by affixation on the residence.
(3.) An ex parte decree followed on 27-5-1949. In execution of that decree certain trees were attached in October 1949. On 2-1-1951 an application was made by the Defendant for the setting aside of the ex parte decree and it was stated therein that the Defendant became aware of the decree five or six days before that date. In support of that application an affidavit by the Defendant's husband was filed. No counter-affidavit was filed on behalf of the Plaintiff. On the date of the hearing of the application for restoration the Defendant was examined on oath by the court and the Defendant stated that for about six months she had been living at her father's house in village Damni-Mau where her daughter had been ill. In cross-examination it was brought out that her husband was living at the village house and he used to visit her at her father's place from time to time and that the attachment was made about one and a half years earlier. No evidence was produced in the restoration proceedings by the Plaintiffs. The learned Munsif thereupon passed the following order which has been impugned in this Court: This is an application for restoration of an ex parte decree against the Defendant. The application is supported by an affidavit. The Defendant examined herself and deposed that she was not at the house for the last six months and so she could not know of the service of the summons. She has admitted in her cross-examination that her husband used to live in the house and he used to visit her. There has been gross negligence on her part. But in the interest of justice, I allow this application. The suit is restored to its original number on payment of Rs. 15/ - as costs to be paid within a week.;