Mahomed Mera Rowther v. Kadir Mera Rowther And Others

1. The omission to have a notice served under O. 21, R. 22, (Section 248 of the old CPC,) is no doubt, a serious irregularity: Malkarjun v. Narhari(1). Whether it would be such a serious irregularity under the new Code as it would have been under the old Code is a matter for fair argument having regard to para. 2 attached newly to O. 21, R. 22.

2. There is also no question that service of a notice otherwise than personal delivery cannot be said to have been effected duly unless the Court declares under O. 5, R. 19, (old S. 82) that the notice has been duly served, though personal service has not been effected: see Nusur Mahomed v. Kazbai(2).

3. But, as pointed out in that case in Nusur Mahomed v. Kazbai itself, “there is a presumption in favour of the proceedings of Courts of justice that everything has been duly performed” and hence even though there is no express note by the Court that it accepts the service by affixture as service duly made, a declaration to that effect by the Court could be implied if on and after the return of the process by the serving office, the Court passes orders on the basis that the service has been duly made: see In re Sree Krishna Doss(3).

4. In the present case, the District Munsif passed orders for, attachment after the process of service of notice under S. 248 was returned by the person with the note that it was affixed to the outer door of the judgment-debtor owing to his evading service.

5. This act of the Court indicates, in our opinion, a sufficient declaration that the service has been duly effected.

6. The learned District Judge has evidently gone upon the view that unless there is an express written declaration of due service noted by the Court, there can be no legally valid service.

7. The circumstances of this case as set out by the District Munsif clearly show that, as a matter of fact, the judgment-debtor had full notice.

8. As the learned District Judge has set aside the Munsif's order refusing to set aside the Court auction sale on the sole ground that notice had not been duly served under S. 248 on the judgment-debtor and as we find that notice was duly served, the District Judge's order on appeal is set aside and the District Munsif's order restored with costs in this and in the lower appellate Court.

9. It, follows that the respondents' memorandum of objections in the matter of the District Judge's disallowance of cost to this respondent must be and is dismissed with costs.

10. As no civil revision petition lies when an appeal is allowed, the Civil Revn. Petn. No. 142 of 1912 is dismissed.

S.N/R.K

11. Petition dismissed.