Civil Revision No. 91 of 2016. Case: Parma Nand Vs Kasturi Lal and Ors.. Himachal Pradesh High Court
| Case Number | Civil Revision No. 91 of 2016 |
| Counsel | For Appellant: Nishant Kumar, Advocate and For Respondents: K.D. Sood, Senior Advocate, Mukul Sood and Sanjeev Sood, Advocates |
| Judges | Sureshwar Thakur, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order V Rules 15, 17, 22, 23; Order XXI Rules 2, 21, 22, 30, 4, 5, 54, 54(1A), 64, 66, 66(2), 66(2)(c), 66(2)(e), 67, 68, 89; Section 47 |
| Judgement Date | March 29, 2017 |
| Court | Himachal Pradesh High Court |
Judgment:
Sureshwar Thakur, J.
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The petitioner herein suffered a conclusive binding decree for recovery of money decree whereof stood rendered by the learned Sub Judge 1st Class, Dehra, District Kangra, H.P., in Civil Suit/RBT No. 27/99/91, verdict whereof stood pronounced on 27.12.2000. On rendition of the aforesaid conclusive decree, the plaintiffs/decree holders instituted an application under Order 21, Rule 30 of the Code of Civil Procedure before the learned Executing Court wherein they sought realization of the decretal amount from the Jds, in the manner hereinafter extracted:-
(1) That in C.S. titled Kasturi vs. Hari Chand and others C.S. No. RBT 27/99/91 the Hon'ble Court S.J.I. Dehra on 27.12.2000 have passed the order decree against the respondents to the tune of Rs. 3020/- being LRS of late Sh. Santu to the extent their shares inherited from late Sh. Santu.
(2) That the respondents have not paid the amount recoverable by applicant despite the decree and order passed by the Hon'ble Court.
(3) That JD's No. 1 to 3 have inherited share of khilwatta, who have succeeded to Late Sh. Santu to the extent of 1/4 share. Respondent No. (4) ABCD have inherited the share of late Sh. Gian Chand, who have succeeded to late Sh. Santu to the extent of 1/4 share. Respondent No. 4 also have succeeded to late Sh. Santu to the extent of 1/4 shares. Respondent No. 5 also have succeeded to late Sh. Santu to the extent of 1/4 shares. Similarly respondent NO. 6 have succeeded to late Smt. JOK to late Santu to the extent of 1/4 shares.
4. That as per share respondents No. 1 to 3 had to pay Rs. 755/- in equal share, respondent No. 4 ABCD had to pay Rs. 755 in equal share. Respondent 5 to the extent of Rs. 755/- and respondent No. 6 to the extent of Rs. 755/- to the applicant.
5. That respondents have inherited the other land of late Sh. Santu which is comprised khata 104, khatauni 174, khasra Nos. 97, 99, 136, measuring 0-03-45 hectares and in khata No. 106, khatoni No. 176, khasra N. 98, 106, 107 area 0-09-58 hectares situated in Mohal Katoi Mauza Chakath, Tehsil Dehra, District Kangra, H.P. entered, (H.P.) entered jamabandi 1999-2000.
6. That no appeal against the order and decree is pending or has been fled as per knowledge of the applicant.
(7)....
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Notice upon execution petition No. 19 of 2003 stood ordered by the learned Executing Court to be issued upon the JDs. The process server concerned, concerted to personally serve JD Parmanand through ordinary mode. The endorsement made by the process server concerned on the reverse of the apposite summons, discloses qua on his visiting the abode of Parmanand, on 5.9.2003 also his concerting to locate him there at, whereas his apposite concert(s) proving abortive, thereupon, his delivering a copy of the summons(es) to his daughter Vijeta Kumari, also he echoes therein qua the latter willingly accepting them. He also makes a disclosure in the apposite summons qua Vijeta Kumari, the daughter of Parmanand residing along with the latter. JD Parmanand despite standing served through his daughter Vijeta Kumari omitted to on the relevant date, record his presence before the learned executing Court, whereupon the latter proceeded to order qua his being proceeded against ex-parte.
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The execution petition, in the absence of JD Pramanand recording his presence there before progressed uptill the stage of the decree holder(s) on 15.2.2005 under an application constituted there before under Order 21, Rule 64 of the CPC, motioning it, for sale of the attached property/assets of the Jds, whereon, the learned Executing Court proceeded to record an order for issuance of notice(s) under Order 21, Rule 54(1-A) of the CPC upon the JDs for hence the terms of sale standing settled, It on 24.3.2005 imputed credence to the sworn affidavit furnished before it by the process server concerned holding, echoings qua his effectuating service of notice(s) aforesaid upon JD Nos. 1, 2, 3, 4(d) and 5, whereupon the learned Executing Court, on JD Parmanand besides other JDs omitting to on the date aforesaid record their respective appearance(s) there before hence recorded a direction qua theirs standing proceeded against ex-parte. Both the orders of the learned Executing Court respectively recorded on 27.01.2004 and on 24.03.2005 wherein it directed qua JD Parmanand standing proceeded against ex-parte, stood not concerted by him to be set aside nor obviously he thereafter proceeded to participate in the apposite execution petition.
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The initial effectuation of service of summons by the process server concerned upon JD Parmanand through his daughter Vijeta Kumari, effectuation whereof occurred prior to the order recorded on 24.03.2005 by the learned Executing Court does attract qua him an apposite prohibition engrafted under Order 5, Rule 15 of the CPC, significantly, against the assay process server concerned concerting to serve a copy of summons upon his daughter Vijeta Kumari, importantly, when for reasons ascribed hereinafter the mandate held there within stood evidently infringed, at the stage contemporaneous qua the initial effectuation of service upon JD Parmanand through his daughter whereupon the aforesaid manner of JD Parmanand standing served suffers from a vice of invalidity also the order(s) pronounced by the learned Executing Court qua his for want of his appearance there before, his being hence proceeded against ex-parte, concomitantly stand stained with jurisdictional fallibility. Provisions of Order 4, Rule 15 stand extracted hereinafter:-
"15. Where service may be on an adult member of defendant's family.-Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no cogent empowered to accept service of summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.
The aforesaid provisions hold a palpable mandate upon the process server concerned, to prior to his proceeding to effectuate a copy of the relevant...
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