Mst. Bhabia Devi vs Permanand Pd. Yadav
- SCC(1997) 3 SCC 631
- Neutral1997 INSC 194
- AIRAIR 1997 SC 1919
- SCR[1997] 2 SCR 465
Ratio decidendi
The rule this decision rests on
Where a defendant refuses to accept service of notice despite multiple attempts at personal service and published notice in the Gazette, and subsequently seeks to set aside an ex-parte decree on the ground that notice was not properly served, the court will not interfere with the finding of fact made by the courts below on the question of service if that finding is supported by evidence, nor will it entertain a challenge to the merits of the decree where the appeal does not raise those merits as a subject matter under Section 96 or Section 100, C.P.C.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
O R D E R This special leave petition arises from the order of the High Court of Patna, made in Appeal from the Original Order No.406/86 on July 24, 1996.
The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served notice but since she did not contest the suit, ex-parte decree was granted. Subsequently, the petitioner filed an application under Order IX, Rule 13, C.P.C. seeking setting aside of the ex-parte decree. Therein, her specific case was that she was not residing at Garhia Village and, therefore, the notice could not be deemed to have been served on her. The endorsement is not correct. The question was gone into by the courts below after recording the evidence of one Laxuman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Bhabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the notice. When the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984 when the registered card acknowledgement was sent, she refused to acknowledge it. Under those circumstance, the courts below have concluded and the High Court has recorded as under:
"Apart from the aforementioned two modes for service of notice, as I have already noticed, there was yet anther mode by way of Gazette publication. An attempt has been made on behalf of the appellant to say that she being illiterate lady could not learn about the Gazette publication."
This is a finding of fact on appreciation of the evidence. Thereby, it is clear that petitioner had refused to accept the notice. Consequently, she was rightly set ex- parte. The learned counsel for the petitioner seeks to contest the case on merits. We cannot go into the merits since the appeal was not subject matter in any of the appeals filed either under Section 96 or Section 100, C.P.C.
The special leave petition is dismissed.
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free