Proper service of notice defined.

ORDER.- This appeal arises out of an order of the lower Court rejecting the appellant’s petition under Order 21, rule 90 of the Code of Civil Procedure for setting aside the sale of a house held on 14th August, 1972 in - execution of a decree in. O.S. No. 445 of 1969.

2. The 2nd respondent obtained a mortgage decree against the appellant and respondents 3 and 4 in O.S. No. 448 of 1969 and to realise the decree amount he filed E.P. No. 33 of 1972 for sale of the property. The property was actually sold on. 14th August, 1972 for Rs. 27,700. The appellant who was the 3rd defendant in the suit had filed E.A. No. 98 of 1973 to set aside the said sale on three grounds (1) that there was no proper service of notice on him before the sale was ordered; (2) that there was no proper publicity given to the proposed sale of the property; (3) that the property which is worth more than Rs. 60,000 was sold only for a sum of Rs. 27,700 which was resulted in. considerable loss and prejudice to him. In the counter-affidavit filed by the decree holder it has been stated that the appellant was aware of all the proceedings both prior and after the decree that he was served with notice at every stage, and that he wantonly absented himself from attending Court, that there was proper proclamation and publication and that the property being an. old building has fetched a proper pi-ice.

3. The Court below after considering the oral and documentary evidence adduced by either of the parties has held that the appellant should be taken to have been duly served, that there was due and proper publicity and that the property is not shown to have fetched a low price. On the question whether there was due service of notice on the appellant, the lower Court has stated that as the other defendants, who are the brother and mother of the appellant, had been served with notice and they had appeared in. Court, it should be taken that the appellant also should have been served with notice in the execution petition. I do not see how the lower Court can assume due service on the appellant merely because notices have been served on. his brother and mother, the other defendants in the suit. There cannot be any presumption that if one defendant is served the other defendant should be deemed to have been served. Though the said reasoning is not sound the Court below has also found that there was service of notice on the appellant by affixture.

4. The learned counsel for the appellant points out that mere affixture of notice cannot be taken to be a proper service. But in this case the report of the process server as well as his evidence before Court as R.W. 2 indicate that notice was offered to the appellant at his residence and he refused to receive the same after going through the notice. The question therefore is if there is a refusal on the part of the appellant to receive a notice tendered by the process server, the subsequent affixture of the notice on the residential premises can be taken to be a sufficient compliance with the statutory provision regarding the service of notice. Order 5, rule 17, Civil Procedure Code, deals with the procedure to be followed when the defendant refuses to accept service. That Rule provides that where the defendant refuses to accept service of notice and sign the acknowledgment the serving officer shall affix a copy of the summons on. the outer door or some other conspicuous part or the house in which the defendant ordinarily resides. In view of the said Rule, the affix cure of the notice of the execution petition on the appellant’s residence on his refusal to accept the notice appears to be a due service as contemplated by Order 5. rule 17. The learned counsel for the appellant would however contend that in a case like this where ore’s property is sought to be sold, there should be personal service or service through registered post to ensure that he becomes aware of the execution proceedings. It is not possible for me to accept such submis

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