Service of Master's Summons and grounds for substitution of heirs on one of the heirs is sufficient, and the time for making application for setting aside ex parte decree starts from the date of the decree, not from the date when the applicant had knowledge of the decree.

PRATIBHA BONNERJEA, J.

( 1 ) THIS suit was instituted by the plaintiff against one Nand Kishore Jhajharia in 1963 for recovery of money lent and advanced. It is an admitted position that Girdharilall Jhajharia, the eldest son of Nand Kishore since deceased, was looking after the suit on behalf of his father during his lifetime, Nand Kishore Jhajharia died on 20-10-1975 but the information of his death was not given to the plaintiff until 19-9-1978 when the suit was called on for the hearing on that day. M/s. Mukherjee and Biswas was the advocate on record of Nand Kishore Jhajharia. On 13-11-1978 the plaintiff applied for substitution of the heirs of Nand Kishore Jhajharia with a prayer for setting aside the abatement and condoning the delay. It appears from the joint affidavit of service of Bishambhar Kundu and Chittaranjan Das affirmed on 17-11-1978, that copies of the original Master's Summons along with the copy of grounds were served on one Arun Kumar Jhajharia, respondent 1 (c) at premises No. 12, Sunny Park, Calcutta, which is admittedly the residential house of the defendants. According to this affidavit, Arun Kumar one of the sons of the deceased accepted the service for self and on behalf of the other heirs of Nand Kishore Jhajharia. After that application for substitution was taken out M/s. Mukherjee and Biswas appeared in that application on 9-12-1978, 20-12-1978 arid 9-1-1979 on behalf of the present petitioners and by consent of the parties the matter was adjourned from time to time. Ultimately the order for substitution was made on 9-1-1979. The plaintiffs advocate on record, M/s. P. D. Himatsingka and Co. immediately by their letter dated 10-1-1979 addressed to M/s. Mukherjee and Biswas informed them about the said order. Then by another letter dated 27-1-1979 M/s. P. D. Himatsingka and Co. sent the copy of the amended plaint to M/s. Mukherjee and Biswas. M/s. Mukherjee and Biswas never alleged that they had no authority to appear on behalf of the petitioners in that application or to accept the amended plaint. Thereafter an ex parte decree was passed in the suit on 23rd April, 1983. It is alleged by the petitioners that on or about 29th Mar. 1983 the petitioner Arun Kumar Jhajharia received a letter from M/s. P. D. Himatsingka and Co. from which he came to know that an ex parte decree had been passed and he immediately communicated the said news to the other heirs of Nand Kishore Jhajharia, deceased. This petition is made by Arun Kumar Jhajharia for self and on behalf of the other heirs of Nand Kishore Jhajharia, but the petition has been verified by Arun Kumar Jhajharia alone. Prior to the taking out of this application, the present advocate on record of the petitioner M/s. L. P. Agarwalla and Co. by a letter dt. 27th April 1983 wrote to M/s. Mukherjee and Biswas enquiring from them whether the present petitioners had given any warrant of attorney or vakalatnama in their favour. The letter is as follows : --"please note that we have received instructions to appear on behalf of our clients Mr. Girdharilal Jhajharia, Ashok Kumar Jhajharia, Arun Kumar Jhajharia, Anil Kumar Jhajharia, Krishna Gopal Jhajharia, Smt. Savitri Devi Jhajharia, Smt. Prema Modi and Smt. Uma Parasramka in the above matter. Kindly let us know whether the persons named hereinabove has given any warrant of attorney or vakalatnama to you in the above matter. If so, please confirm. " in the petition there is no averment as to whether M/s. L. P. Agarwalla and Co. had received from M/s. Mukherjee and Biswas any reply to this letter or not. The petitioner is keeping silent over this matter. In para 10 of the petition it has been alleged as follows : --"in this connection I annex hereto a copy of a letter dt. 27th April 1983 addressed by Messrs. L. P. Agarwalla and Co. to Messrs. Mukherjee and Biswas recording the fact that none of your petitioners ever executed any power of attorney and/or vakalatnama to represent and/or act for any of your petit

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