Valluri Basavayya v. Peruri Kistna Brahmam

JUDGMENT

The 1st Respondent in this case is the transferee of a small cause decree against the Petitioner. He applied for execution under order XXI, Rule 16 of the Code of Civil Procedure. Notice of the application as required by that rule was issued to the petitioner and served by affixture on 26th November 1910, the date of hearing being 5th December 1910, On 5th December 1910, the petition was heard. The original decree-holder admitted the transfer. The petitioner was absent. The Subordinate Judge apparently held the service of notice on the petitioner to be sufficient and passed an order for attachment in execution.

On 12th January, 1911, the petitioner presented an application to set aside that order alleging, inter alia, that he had received no notice. This was rejected by the Subordinate Judge on 30th March, 1911. In paragraph 2 of his order the Subordinate Judge holds the petitioner had notice, that is, that the service was sufficient. Against that order, the present revision petition is presented under section 25 of Act IX of 1887.

The sole question for disposal is whether the service of the notice by affixture on 26th November, 1910, is such as the Subordinate Judge could legally hold to be sufficient.

No other point has been argued. The facts relating to the service are set forth in the process server's affidavit and are not traversed.

“Having gone to the said village on 26-11-10 and made enquiry about this defendant and being told by the woman at the house and Kalur Venkayya that he went to Bezwada and that it is not known when he will return, I have affixed the duplicate to the house door. As the village officials were not present, I have not brought the report.” Bezwada is stated to be about 4 miles from the petitioner's village.

The law on the subject is contained in Order V, Rule 17 of the Code of Civil Procedure, and (omitting surplus verbiage) the point is whether it was open to the Subordinate Judge to hold that the serving officer “after using all due and reasonable diligenee” was I unable to find the petitioner. If so, he was authorized to serve the notice by affixture and the Court might treat this service as sufficient.

Certain reported cases have been quoted on the petitioner's behalf to show that it was not open to the Subordinate Judge to come to this conclusion. These are Subramania Pillai v. Subramania Ayyar, Abraham Pillai v. Donald Smith, Vellayappa Chetti v. Veerappa Chetti and Sakina v. Gauri Sahai. I have carefully considered the judgments in these cases; but I do not find therein any rule of law which is binding on me in the present case. They are all cases presenting points of similarity to the present case, in which an order of a subordinate court treating service by affixture as sufficient was set aside. Both the two last named were regular appeals, in which a High Court would interfere, if it disagreed with the subordinate court's order on its merits. The two earlier Madras cases are cases in which the Court revised the order under section 25 of Act IX of 1887.

It seems to me that the question whether the serving officer was unable “after using all due and reasonable diligence” to find the defendant is a pure question of fact which must be determined on the merits of each case. So much is clearly laid down in an earlier case [Sankaralinga Mudali v. Bathnasabhapati Mudali] by the very same two learned Judges as decided in Subramania Pillai v. Subramania Ayyar and I think, it may be said with some confidence, that, in view of this expression, they did not intend to decide anything more in Subramania Pillai v. Subramania Ayyar than that the service in that case was not proper.

The Judgment in Sankaralinga Mudali v. Rathnasabhapati Mudali not only makes it clear that each question of this nature should be decided on its merits by the court issuing the summons or notice but makes illustrative remarks which are at least as pertinent to the present case as those in the cases relied on by the petitioner's vakil

I have therefore to decide whether on the record before him the Subordinate Judge was not legally justified in coming to the conclusion that the service was sufficient. The record shows that the process server, on arriving at the petitioner's house, found him absent and was informed by the woman of his family and another man that he had gone to Bezwada and it was not known when he will return. What under these circumstances did “due and reasonable diligence” require? As far as I can see, the process server could have done only one of two things: (1) to follow the petitioner to Bezwada in the hope of finding him and (2) to wait in his village until he should return. Bezwada is a town of 32,000 inhabitants and it does not appear that the process server has any indication of where in that town the petitioner was to be found, or, on the other hand, reason to expect his return within a short period of time. It is difficult to say that it was the duty of the process server to adopt either course. Certainly I am not prepared to say that the Subordinate Judge could not legitimately come to an opposite conclusion.

I am, therefore, of opinion that there are no sufficient grounds for interference and I dismiss the revision petition with costs.

Petition dismissed.