S.K.Mookherjee, J. - (1.) The present appeal is directed against a judgment end order passed by the learned Assistant District Judge, 2nd Court, Alipore, in Misc. Case No. 55 of 1987, whereby the learned Assistant District Judge, rejected an application under Order 9, Rule 13 of the Code of Civil Procedure preferred by the appellant/judgment debtor. The ex parte decree is one for eviction.
(2.) So far as the appellant's case is concerned; it is a case where the first limb for relief under Order 9 Rule 13 of the Code of Civil Procedure has been sought to be invoked. The decree-holder/respondent, however, has pleaded disentitlement of the appellant to the relief claimed on the ground, as pleaded on behalf of the appellant, inter alia, relying upon the finding of the Trial Court about satisfactory service of summons and also on a technical ground of limitation by reference to the second limb of Article 123 of the Limitation Act. It has further been the plea of the decree-holder/respondent that even assuming that there was some irregularity in the service of summons, in view of the second proviso to Order 9 Rule 13 of the Code of Civil Procedure, the said irregularity could not result in setting aside of the ex parte decree in question.
(3.) Mr. Mitter, appearing in support of the appeal, has laid great emphasis on certain facts which transpire from records and according to him a careful consideration of such facts must inevitably have the effect of destroying the tenability of the finding about satisfactory service of summons in the suit, as made by the learned Trial Judge and affirmed in the impugned order. The said facts, as relied upon by Mr. Mitter, may bit narrated as follows :- (i) The plaintiff's assertion in the letter dated 12.6.1986 was promptly controverted from the side of the judgment-debtor/appellant by its letter dated 20.6.1986, expressing clearly therein, the firm intention of the judgment debtor/appellant to contest any proceeding, which might instituted by the plaintiff/decree-holder in pursuance of the said letter. (ii) The summons, served through the Court process Server, was found to be an unsatisfactory service by the Court and the refusal to acknowledge the service in writing as recorded in the report of the said process Server was not believed by Court. (iii) The Registered-Post-Notice was sent without an "Acknowledgement Due Card," which was an indispensable requirement under the provisions of Order 5 Rule 19A of the Code of Civil Procedure; the absence of such acknowledgement, accompanying the registered summons appears confirmed by absence of attempt on the part of plaintiff to prove such A.D. Card and non-filing of evidence of O.P.W.I., such registered envelope had been despatched not through the office of the Court but by the clerk of the plaintiff/decree-holder's learned Advocate and that too not from any Post Office in the vicinity of the Trial Court but from G.P.O., which is far away therefrom. The postal peon also was not called as a witness though the tendering of the envelope or the summons had been categorically disputed from the side of the judgment-debtor/appellant. (iv) In view of non-service of summons the judgment debtor/ appellant was entitled to file the application under Order 9 Rule 13 of the Code of Civil Procedure within 30 days from the date of knowledge of the ex parte decree. The plea of the plaintiff/decree holder that even assuming the defendant's of knowledge must be taken to be 16th of February, 1987 is not tenable in view of the vital contradictions between the contents of the report of the Court bailiff and the evidence of the O.P.W. No 1. (v) The impugned order embodies findings about date of knowledge of the suit but not about date of knowledge of the decree in the absence of which the finding of the learned Assistant District Judge about the application under Order 9 Rule 13 of the Code of Civil Procedure having become time barred becomes untenable. ;