MOHAN TRADERS Vs. A V M CATTLE AND POULTRY FEEDS MFG INDUSTRIES

JUDGEMENT

(1.) THE appeal arises from an order refusing to set aside an ex parte decree passed against the appellants.

(2.) THOUGH the parties to the suit reside in the Coimbatore district of tamil Nadu, the suit was filed in the Sub Court , Trivandrum apparently oh the ground that the cause of action arose within the jurisdiction of that court. The court issued summons to the defendants by registered post returnable by 21-1-78. The postal authorities returned the summons with an endorsement of refusal. On 21-1-78 when the case was taken up the defendants were absent and were declared ex parte. On the plaint claim being proved by affidavit, the suit was decreed on 28-2-1978. Execution was taken up in due course and notice of execution was served on the defendants through the Sub Court , Erode. The defendants thereupon filed I. A. 1723 of 1979 for setting aside the ex parte decree stating that they were not served with summons and that they came to know of the decree only on 23-2-79 when the notice of execution was served on them. Basing on the admission of pw. 1, the father of defendants 2 and 3, that the address given of the defendants on the cover which purported to contain the summons and the copy of the plaint was correct, the learned subordinate Judge held that there was proper service of summons. The petition was accordingly dismissed. It is this order that is challenged in this appeal.

(3.) KERALA R. 9 (3) and R. 20a (2) came up for interpretation before a Division Bench of this Court in Daveed Aseervadam v. Govinda Pillai (1970 KLT. 907 ). The court held that since R. 9 (3) says nothing about an endorsement of refusal, the implication is clear that an endorsement of refusal is not to be deemed to be sufficient proof of service. In such cases, sub-rule (2) of R. 20a has no application and when a summons issued under R. 9 (3) is returned with an endorsement by the postman that it was refused, there is no due service of the summons.