Full Judgment Text
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PETITIONER:
MST. BHABIA DEVI
Vs.
RESPONDENT:
PERMANAND PD. YADAV
DATE OF JUDGMENT: 24/02/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
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
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appeals filed either under Section 96 or Section 100, C.P.C.
The special leave petition is dismissed.