DEBANGSU BASAK, J. - (1.) THE heir and legal representative of the deceased Defendant No. 20 applied for recording the death of the Defendant No. 20, consequential substitution and for other reliefs.
(2.) THE applicant claimed that he became aware of the pending suit from a postal cover addressed to the deceased Defendant No. 20 containing an application of the plaintiff. The Defendant No. 20 died on October 17, 2005. The applicant claimed that, the plaintiff did not serve writ of summons of the suit on the Defendant No. 20 during his lifetime. The Defendant No. 20 as such could not enter appearance in the suit. The applicant relied upon the report of the office of the Sheriff of Calcutta dated September 20, 2006 which stated that, the writ of summons in respect of the deceased Defendant No. 20 was received by one Mr. K.K. Agarwala. In course of argument, it was contended that, the applicant made enquiries with the office of the Sheriff with regard to the service of writ of summons on the Defendant No. 20 by way of registered post by the advocate's letter dated April 25, 2014. The office of the Sheriff by the writing dated April 29, 2014 stated that, the signature of the receiver on the postal acknowledgement due card of the Defendant No. 20 was illegible. It was also contended that, the Defendant No. 20 described himself as Shyam Sundar Mahamiya and not Shyam Sundar Agarwal. It was, therefore, claimed that the writ of summons was not served. The plaintiff should be directed to serve the writ of summons of the suit on the applicant. The pleadings should be adequately amended. The applicant be afforded adequate time to file written statement subsequent to service of writ of summons on him. The plaintiff contested the application. It was claimed on behalf of the plaintiff that, the Defendant No. 20 was adequately served during his lifetime with the writ of summons of the suit as would appear from the report of the office of the Sheriff as well as from the original acknowledgement due card. The Defendant No. 20 being served with the writ of summons and such defendant not having entered appearance since after such service, it was submitted on behalf of the plaintiff that, the applicant was not entitled to any of the reliefs as prayed for save and except recording the death of the Defendant No. 20. The plaintiff sought permission to proceed against the heirs and legal representative of the deceased Defendant No. 20 in terms of Order 22 Rule 4(4) of the Code of Civil Procedure, 1908. The plaintiff relied on the application and the affidavit in reply and submitted that, the Defendant No. 20 used both the surnames.
(3.) I have considered the respective contentions of the parties and the materials on record. The report of the office of the Sheriff dated September 20, 2006 stated that the Defendant No. 20 was served with the writ of summons on April 29, 1993. The writ of summons was received by Mr. K.K. Agarwala on behalf of the Defendant No. 20. The Defendant No. 20 was also served by registered post with acknowledgement due card. The original acknowledgement due card was produced in Court. The same was shown to the advocates of both the parties. The learned advocate for the applicant fairly admitted that the signature appearing on the postal acknowledgement due card was legible contrary to the writing dated April 29, 2014 of the office of the Sheriff annexed to the affidavit in reply.;