2008 (12) TMI 792 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of ex parte order.
2. Compliance with procedural requirements under Order 5 Rules 19 and 20 CPC.
3. Presumption of service under Section 27 of the Post Office Act and Section 114 of the Evidence Act.
4. Requirement for recording reasons for satisfaction under Rule 20.

Summary:

1. Validity of ex parte order:
The petitioner, the eighth respondent in E.P. No. 153 of 1982 in O.S. No. 379 of 1954, was set ex parte by the executing Court on 05.04.2002. He filed an application to set aside the ex parte order within 30 days from the date of his knowledge on 28.02.2008. The executing Court dismissed the application, stating it could not be believed that the petitioner obtained the information about the ex parte order only on 28.02.2008, as his siblings had already made an appearance through their lawyer.

2. Compliance with procedural requirements under Order 5 Rules 19 and 20 CPC:
The petitioner contended that the executing Court did not follow the procedures contained in Order 5 Rules 19 and 20 CPC, which vitiated the ex parte order. The Court bailiff returned the notice stating "no residence," and the Court ordered for publication in a newspaper. The petitioner argued that the Court must declare that summons was duly served by recording its reasons and, if not, proceed under Rule 20 with substituted service, recording reasons for its satisfaction.

3. Presumption of service under Section 27 of the Post Office Act and Section 114 of the Evidence Act:
The respondents argued that a presumption should be drawn under Section 27 of the Post Office Act and Section 114 of the Evidence Act that the summons was duly served on the petitioner. The Court noted that even though the presumption as to the service is drawn in favor of the respondents, the Court did not presume that summons was served upon the petitioner and did not make its declaration as ordained by Rule 19 but acted under Rule 20.

4. Requirement for recording reasons for satisfaction under Rule 20:
The Court discussed various judicial pronouncements on whether the Court must record its reasons for satisfaction before ordering substituted service under Rule 20. The Supreme Court held that if the satisfaction of the Court is implicit, it is sufficient. The Court concluded that no duty is cast upon the Court under Rule 20 to explicitly express its satisfaction by recording the reasons, and the order of substituted service passed by the executing Court is valid.

Conclusion:
The civil revision petition is dismissed, and the ex parte order is upheld as valid. The Court held that the executing Court followed the procedures laid down in the CPC, and there was no legal infirmity in the proceedings. The requirement for recording reasons for satisfaction under Rule 20 is not mandatory, and the order of substituted service is valid in the eye of law.