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2006(3) Kar. L.J. 350
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ANAND BYRAREDDY, J.
S.K. AUSTIN AND OTHERS
v
CORPORATION BANK, K.H. ROAD, BANGALORE
Miscellaneous First Appeal No. 6501 of 2001 (CPC).
15th June, 2005
Miscellaneous petition -Substituted service by way of paper publication -Computation of limitation -Should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard. [Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
Substituted service
PRACTICE AND PROCEDURE - Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard.
[Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
CIVIL PROCEDURE CODE, 1908
Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard. [Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
LIMITATION ACT, 1963 - Article 123 -Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard. [Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
Miscellaneous petition
CIVIL PROCEDURE CODE, 1908 - Section 141 -Miscellaneous petition -Substituted service by way of paper publication -Computation of limitation -Should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard.
[Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
Substituted service
CIVIL PROCEDURE CODE, 1908 - Order 5, Rule 20 -Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard.
[Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
PRACTICE AND PROCEDURE - Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard. [Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the Explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.Text1
Substituted service
LIMITATION ACT, 1963 - Article 123 -Substituted service -Limitation-Computation of -Substituted service by way of paper publication -Limitation should be computed from the date of knowledge which has to be ascertained by allowing the party to adduce evidence in this regard.
[Anand Byrareddy, J]: The Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned Order is liable to be set aside.
The appellants herein had filed a miscellaneous petition under Order 9, Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex parte judgment and decree. The said miscellaneous petition was filed after a delay and hence, the petition was accompanied by an application seeking condonation of delay. The Trial Court had ordered notice to the respondent in the petition, who had appeared before the Court and filed objections to the petition, as well as to the interim application seeking condonation of delay. Subsequently, when the interim application was listed for hearing, the Court has been pleased to reject the application for condonation of delay and consequently, the main petition. The appellant questions this action on the part of the Trial Court and urges the following circumstance which according to the appellant, the Court below has failed to take into consideration, viz., that the service of summons in the original suit was by recourse to substituted service by way of paper publication and hence, seeking condonation of delay would be governed by Article 123 of the Schedule to the Limitation Act, 1963, which provides for the period limitation in respect of an application to set aside a decree passed ex parte and the said article contains an explanation which reads as follows
"123. To set aside a decree Thirty days The date of the decree or
an appeal decreed or heard where the summons or
ex parte. notice was not duly
Explanation.-For the purpose served, when the applicant
of this article, substituted had knowledge of the decree
service under Rule 20 of
Order 5 of the Code of
Civil Procedure, 1908
shall not be deemed to
be due service".
2. The appellant would also urge that apart from the fact that for purposes of computing limitation, substituted service under Rule 20 of Order 5 is not deemed to be due service, the Trial Court has erred on yet another count viz., that under Section 141 of the Code of Civil Procedure, 1908, that the procedure provided with regard to the suits ought to have been followed in respect of the proceedings in which the impugned order has been passed uiz., a proceeding under Order 9. The Trial Court has failed to do so and therefore, the same requires to be set aside.
3. There is much force in the submission of the Counsel for the appellants for the following reasons. Firstly, the Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order 5, Rule 20 may be sufficient in the sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the Trial Court was in error in holding that there was sufficient service for purposes of Order 5, Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned order is liable to be set aside. Hence, the following order.
4. The appeal is allowed. The order of the Trial Court is set aside. The matter is remitted to the Trial Court for hearing on LA. No. I for condonation of delay and thereafter to consider the merits of the appellants' case, if so warranted.
No order as to costs.
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