1957 (4) TMI 86 - HC - Indian Laws

Summary

Issues Involved:
1. Refusal to set aside an ex parte decree.
2. Jurisdiction and material irregularity.
3. Service of summons and substituted service.
4. Duty of the Court to inform the parties of the hearing date.
5. Limitation under Article 164, Limitation Act.
6. Wilful neglect or default by the defendant.
7. Possession and execution of the decree.

Detailed Analysis:

1. Refusal to Set Aside an Ex Parte Decree:
The defendant filed an application to set aside an ex parte decree, arguing he was unaware of the proceedings and not properly served notice of the hearing date. The lower courts dismissed this application, prompting the defendant to seek revision from the High Court.

2. Jurisdiction and Material Irregularity:
The High Court examined whether the lower courts' jurisdiction was tainted by material irregularity or illegality. It was noted that if the court failed to inform the parties of the hearing date after the case was remanded by the High Court, it constituted a material irregularity.

3. Service of Summons and Substituted Service:
The defendant contended that he was not served notice of the hearing date. The court discussed the validity of substituted service, emphasizing that while substituted service is generally deemed sufficient, the court can review its effectiveness under Order 9, Rule 13. The court referred to a Full Bench decision stating that substituted service does not prevent the court from determining whether the service was effective.

4. Duty of the Court to Inform the Parties of the Hearing Date:
The court highlighted the principle that it is the court's duty to inform the parties of the hearing date, especially after a case is remanded. This aligns with the principles of natural justice and was supported by past judgments, such as Durga Prasad v. Het Ram.

5. Limitation under Article 164, Limitation Act:
The plaintiffs argued that the application to set aside the ex parte decree was barred by limitation under Article 164. The court clarified that if there was an interruption in the hearing due to a stay order, the limitation period would start from the date the defendant became aware of the decree.

6. Wilful Neglect or Default by the Defendant:
The court found no evidence of wilful neglect or default by the defendant. It was noted that the defendant's counsel had fallen ill and died, which could explain the lack of enquiry about the hearing date. The court concluded that the defendant did not know the hearing date and was not guilty of wilful neglect.

7. Possession and Execution of the Decree:
Despite setting aside the ex parte decree, the court ordered that the plaintiffs' possession of the property, obtained through the ex parte decree, should not be disturbed until a final decree is passed by the Munsif. If the plaintiffs' suit is decreed again, possession remains with them; if dismissed, the defendant can seek possession.

Conclusion:
The High Court allowed the revision, set aside the ex parte decree, and ordered the case to be decided expeditiously by the trial court. The defendant was required to pay Rs. 50/- as costs to the plaintiffs within three months, failing which the revision application would stand dismissed.