- (1.) Short question which arises for consideration in this appeal is as to whether the summons can be said to have duly served when process server going to the defendants house for the first time and on finding that he had gone to another town affixed summons on outer door of his house?
(2.) This question has emerged in the following circumstances : (i) Plaintiff respondent instituted a civil suit against the defendants appellants in the trial Court. Summons was issued against the defendants for appearing in the Court or April 20, 1992, but returned with the report of process server that he had gone to the house of the defendants on April 18, 1992 but defendants had gone out so he tried to serve the summons on the wives of the defendants who refused to accept the summons therefore the summons was affixed by him on outer door of the house in the presence of two witnesses. (ii) On the basis of the report of process server the trial Court proceeded ex parte against the defendants on April 20, 1992 and ex parte decree was passed on March 8, 1994 The defendants filed application for setting aside the ex parte decree under Order 9, Rule 13, CPC along with affidavits of their wives Smt. Ram Pyari Murli Devi and Kamala Devi who affirmed on oath that none from the Court at any time went to their residence for service of summons or notice and there was no occasion for them to refuse the service of summons. They never refused the service of summons as alleged. The defendants alleged in the application that they came to know about the decree at any time before July 15. 1995 when they were first apprised of the same by one Shri Sujee Lal. (iii) The trisl Court dismissed the application vide order dated August 3, 1996. Against the said order present action for filing the appeal has been resorted to.
(3.) Close scrutiny of the record reveals that the process server had gone to the house of the defendant on April 18, 1992 for the first time and on finding that the defendants had gone out he affixed summons on outer door of their house.;