Rameshchandra Rathore v. Union Bank Of India .

A.M. SAPRE,J.

(1.) Defendant No. 2 who was suffered ex-parte decree in a civil suit filed by plaintiff-Bank (respondent No. 1 herein) wanted to get rid of the same by making an application under Order 9, Rule '13 of C.P. Code. However the learned trial Judge refused to set-aside the said ex-parte decree by impugned order and hence this appeal. The impugned order is dated 24.9.1999 passed in M.J.C.No. 58/99 by District Judge, Indore.

(2.) Respondent No.- 1 Bank filed a suit being C.S. No.36B/89 against the appellant (defendant No. 2) and other respondents (defendant Nos. 1, 3, 4, 5, 6, 7) for recovery of Rs. 1,17,000/-. This suit resulted in passing a decree on 23.6.1990 in favour of plaintiff and against all the defendants. So far as defendant No. 2 and defendant No. 1 (Since dead) and now represented by his legal representatives were proceeded ex-parte. In other words these 2 defendants suffered ex-parte decree.

(3.) This gave rise to an application made by the appellant (defendant No. 2) under Order 9, Rule 13 of C.P. Code on 22.11.1993 being M.J.C. No. 58/99 out of which this appeal arises. This application was essentially founded on the allegations that defendant No.2 was not served with the summons of plaint. It was alleged that service effected on him by way of publication on 4.2.1990 was not a valid service nor, there was any occasion to get him served by way of publication. It was alleged that he was not aware of any publication as he never came across of the said publication notice. It was then alleged that he came to know only when warrant of attachment was served on him on 16.11.1993 and, therefore, the present application was made for setting aside of the said ex-parte decree.

(4.) The plaintiff-Bank contested this application. It was alleged that defendant No.2(i.e. applicant) had stood as guarantor for the defendant No. 1 who had taken loan as principal borrower. Several efforts were made to serve these 2 defendants by sending summons after summons but they avoided the service and hence eventually the Court on an application made under Order 5, Rule 20 directed substituted service to be effected by way of publication on these two defendants. Accordingly publication was done on 4.2.2000 in daily newspaper having circulation in Indore where these two defendants had last resided for their appearance on 19.2.1990. It was alleged that on this date (19.2.1990) both the defendants remained absent and hence the Court proceeded ex-parte against them. It was alleged that thereafter evidence of plaintiff and their witnesses was recorded and then decree was passed. It was alleged that both the defendants who are principal borrower and guarantor are simply avoiding their liability by resorting to delaying methods and hence also the decree be not set-aside and be upheld having been passed in accordance with law.

(5.) Parties then went to trial in the sense that they led evidence in support of their stand. By impugned order the trial Judge dismissed the application. It was held that there is no cause much less sufficient one made out for setting aside the decree. It is this order which is impugned in this appeal by defendant No. 2 only. In other words, the decree insofar as other defendants are concerned has become final.

(6.) Heard Mr. Rajindra Gupta learned Counsel for the appellant and Mr. R.S. Sanghi learned Counsel for respondent No. 1.

(7.) Learned Counsel for the appellant (defendant No. 2) while attacking the impugned order mainly reiterated the same grounds which were made basis in the application.

(8.) According to learned Counsel, his client was not served either personally or otherwise so as to entitle him to contest the suit. In his submission, the publication was not proper and that it should not have been resorted to for effecting service on the defendant No. 2. He prayed for setting aside of ex-parte decree against the defendant No. 2.

(9.) Learned Counsel for the respondent (Plaintiff) urged for upholding of impugned order as according to him no case for interference is made out.

(10.) Having heard the learned Counsel for the parties, I too have come to a conclusion that no interference is called for in the impugned order. In my opinion, learned District Judge was justified in rejecting an application made for setting aside of decree. Once the defendants were served by way of publication, the provisions of Order 5, Rule 20(2) will apply. It will then be deemed to be a service on the said defendant .and he will deemed to have a knowledge. The service by way of publication by statutory deeming fiction becomes a personal service. It is this deeming fiction that goes against the appellant (defendant No. 2).

(11.) The submission of learned Counsel for the appellant and also the ground in the application that appellant did not have a knowledge because he is not the reader of daily news paper in which the summons was published has not substance. The law presumes knowledge of defendant once the publication in any daily newspaper is made in a locality where the defendant is said to have last resided. It is not the case of defendant No. 2 that he was not the resident of Indore at any point of time or at any rate he never last resided at Indore. On the other hand he admits that he is the resident of Indore.

(12.) In my opinion, the Trial Court was justified in effecting service by publication. It came to a conclusion that defendant despite ordinary mode of service is not being served then resorted to the mode of publication as provided under Order 5, Rule 20 of C.P. Code. No flaw can be found in the procedure adopted. This aspect has been fully dealt with by the learned District Judge and I concur with that finding.

(13.) In view of aforesaid, I do not find any ground to interfere in the impugned order. No other ground having been urged, the appeal fails and is accordingly dismissed.

(14.) No costs. Appeal dismissed.