w w w . L a w y e r S e r v i c e s . i n



P.R. Ramaswami Gounder, Memorial Trust, Rep. By Trustees & Others v/s M/s. Kasturi Travels, Proprietor, Neena Sha & Others

    Civil Revision Petition (NPD) Nos.753 to 756 of 2008 & M.P.No.1 of 2008

    Decided On, 10 June 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. MOHAN RAM

    For the Petitioners: M.S. Krishnan, Senior Counsel, M/s. Sarvabhuman Associates, Advocates. For the Respondents: GRM. Palaniappan, Advocate.



Judgment Text

(Prayer in all the CRPs:- Civil Revision Petitions filed under Section 115 of the Code of Civil Procedure to set-aside the fair and decreetal order of the Principal District Munsif Court at Coimbatore, dated 30.07.2007 in E.A.Nos.131, 132, 133 and 134 of 2006, respectively, in E.P.No.144 of 2005 in O.S.No.417 of 2004.)


Common Order


1. The above Civil Revision Petitions have been filed by the plaintiffs in O.S.No.417 of 2004 on the file of the Principal District Munsif Court, Coimbatore. The plaintiffs / petitioners herein filed the said suit against the respondents herein for directing them to vacate the suit property and hand over the vacant possession of the same to the plaintiffs and for future damages at the rate of Rs.20,000/- per month. The suit was decreed exparte. Thereafter, the petitioners herein filed E.P.No.144 of 2005 to execute the exparte decree. In the Execution Petition also, the respondents herein were set exparte and delivery was ordered. On an application filed by the petitioners herein, an order to break open and delivery of possession was passed. Pursuant to that, the Court Amin has handed over possession to the petitioners herein.


2. Thereafter, the respondents herein filed E.A.Nos.131 to 134 of 2006 for the following reliefs, namely, to stay all further proceedings in the Execution Petition, to set-aside the order dated 03.02.2006 passed in the Execution Petition, not to record delivery of possession and to re-deliver possession of the property taken possession of by the Amin and handover to the decree holders.


3. In all the above said petitions, the case of the respondents herein was that no summons were served on the respondents in the suit and the petitioners herein have manoeuvred to get the exparte decree and in the Execution Petition also, no notice or summons were served on the respondents and the petitioners herein have manoeuvred to get an exparte order of delivery of possession and have taken possession of the suit properties behind their back. It was their further contention that the respondents are carrying on business in the suit properties and no summons was served either personally or by affixture and they were not aware of the paper publication.


4. Whereas the case of the petitioners herein was that as the summons sent through Court could not be served in person on the respondents, the same was affixed by the Process Server at the outer door of the suit property and the notice sent through post was returned with an endorsement 'intimation delivered not claimed' and only thereafter substituted service by paper publication was ordered and accordingly, the paper publication was effected and since on the date of hearing, the respondents failed to appear before the Execution Court, they were set exparte and thereafter, an order for delivery and breaking open of the door were ordered and pursuant to the said orders, delivery was effected; having wilfully evaded to receive the summons and the notice, the respondents have filed these petitions and another petition to set aside the exparte decree passed in the suit just to drag on the proceedings.


5. Before the Court below, on the side of the respondents, one P.Muthusamy has been examined as P.W.1 and Exs.P-1 to P-17 have been marked. On the side of the petitioners herein, R.Ramasubramanian, the fourth petitioner herein, has been examined as R.W.1 and Exs.R-1 and R-2 have been marked. On a consideration of the materials available on record and the contentions put forth by the learned counsel on either side, the Court below came to the conclusion that there was no proper service of summons on the respondents and accordingly ordered the applications. Being aggrieved by that, the above Civil Revision Petitions have been filed by the petitioners herein.


6. Mr.M.S.Krishnan, learned senior counsel for the petitioners, submitted that at the time when the Process Server went to the suit premises as the door was found locked, the summons could not be served on the respondents and hence the same was affixed on the outer door of the suit premises; notice sent through post had been returned with the endorsement 'due intimation served' and only, thereafter, on an application filed by the petitioners herein, substituted service by way of paper publication was ordered and after the paper publication was effected since the respondents failed to appear before the Execution Court, they were set exparte and delivery of possession was ordered. According to the learned senior counsel, the respondents are not carrying on any business at the suit property and no material whatsoever has been placed by the respondents to show that they were carrying on business in the suit property. He further submitted that the Process Server is justified in affixing the summons. He further submitted that unless and until the exparte decree is set-aside, the respondents are not entitled to seek redelivery of possession of the suit property and therefore the order passed by the Court below directing redelivery is not sustainable. He further submitted that since the notice sent through post has been returned with an endorsement 'intimation delivered', it will amount to proper service. In support of the said contentions, the learned senior counsel based reliance on the following decisions:-


(i) AIR 1981 SUPREME COURT 1284 = 1981 All.L.J.504 (Har Charan Singh v. Shiv Rani). In the said decision it was the case that notice sent through post was returned with the endorsement ?refused, returned to the sender', while considering the meaning of service by post and effect of Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, the Apex Court, in paragraph 7, has held as follows:-


?7. ... The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to S. 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. ....... In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. .... It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act 1897 and S. 114 of the Indian Evidence Act.?


(ii) 2005 (4) CTC 30 (Thomas P.T. v. Thomas Job) (SC). In the said decision, it was the case that notice was sent by post to be served on the judgment debtor and since he was absent, intimation regarding the notice has been given and the notice has been returned as 'unclaimed' and while considering the effect of the same, the Apex Court has laid down, as follows, in paragraph 15 of the judgment:-


?15. The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act.?


(iii) AIR 1989 SUPREME COURT 630 (M/s. Madan & Co. v. Wazir Jaivir Chand). In the said decision, in paragraph 6, it has been laid down as follows:-


?6. ... All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, he equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O.V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as ?not found?, ?not in station?, ?addressee has left? and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective equitable and practical interpretation and that would be to read the word ?served? as ?sent by post?, correctly and properly addressed to the tenant, and the word ?receipt? as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant?.


(iv) (2001) 2 M.L.J. 417 (Ramachandran v. Hariharan). In the said decision, a Division Bench of this Court, has laid down as follows:-


?(f) It is not the case of the appellant that the address furnished in the notice is an incorrect one and notice was taken to a wrong address so that, it will not serve on the party. On the other hand, the address given in the notice was the proper address of the appellant and if the party had not been served in spite of giving the correct address, the only course open to the Court is to order substitute service by publication in one of the newspapers. Only this procedure had been adopted by the Courts and considering the fact that the address furnished in the notice sent to the appellant was a correct one. The learned single Judge is right in taking the view that there is no reason to come to the conclusion that notice had not been served on the appellant and as such, it cannot be construed as a just cause to revoke the order. The appellant had stated that on making search of the records on 20.12.1999, he came to know of all the details including the paper publication in a paper widely circulated in that area, where he was then residing. But however, the appellant has not made a statement either in the affidavit or in the reply affidavit that the paper publication did not come to his notice or knowledge, for some reason or the other.?


(v) AIR 2009 MADRAS 114 (P.Baskaran v. Ayyakannu Chettiar). In the said decision, a learned Single Judge of this Court has held as follows:-


?31. In the light of the decisions of the Supreme court and the various High Courts, it is held that the Court is not expected to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 which is not mandatory and so, the order of substituted service passed by the executing Court is valid in the eye of law and it does not suffer from any illegality.?


(v) AIR 1966 Supreme Court 948 (V 53 C 182) (BINAYAK SWAIN v. RAMESH CHANDRA). In the said decision, it has been laid down as follows:-


?.... The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. ...?


7. Countering the above submissions, Mr. GRM.Palaniappan, learned counsel for the respondents submitted that while ordering substituted service by paper publication in the newspaper, the Execution Court had not followed the provisions contained under Order V Rule 20 CPC and therefore the very order directing substituted service itself is bad in law. He further submitted that since the Execution Court had considered the alleged service by affixture and the return of the notice sent by post with endorsement ?door locked intimation delivered? as not sufficient, the Execution Court has ordered substituted service, but, according to the learned counsel, a direction for substituted service under Order V Rule 20 CPC can be passed only when the Court is satisfied ?that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way?; but in these cases the Execution Court has not recorded any reasons much less its satisfaction for ordering substituted service. He further submitted that the materials available on record also does not indicate any implicit satisfaction on the part of the Court to order substituted service. Therefore, according to the learned counsel, the Court below is right in holding that no proper notice has been served on the respondents and therefore, has rightly allowed the applications filed by the respondents; there is absolutely no irregularity much less any material irregularity in the order passed by the Court below and therefore this Court may not interfere with the orders passed by the Court below. In support of the said contentions, the learned counsel for the respondents based reliance on the following decisions:-


(i) 2009-5-L.W.1 (SC) (Smruti Pahariya v. Sanjay Pahariya). In the said decision, in paragraphs 12 and 13 the Apex Court has laid down as follows:-


?12. From the sequence of events, it appears that on 19.11.2007 when the matter came up before the Court, the first day after the mandatory period of six months, the husband was absent. The Court directed service of summons on the husband on the request of the wife. The service return was before the Court on 1.12.2007. Looking at the service return, the Court found that service was not a proper one and the Court was also not satisfied with the endorsement of the courier. Under such circumstances, the Court's direction on the prayer of the appellant-wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a proper one. Direction for substituted service under Order 5 Rule 20 can be passed only when Court is satisfied ?that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way?.


13. In the facts of this case, the Court did not, and rather could not, have any such satisfaction as the Court found that the service was not proper. If the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant-wife for effecting substituted service. .....?


(ii) 1963 (76) L.W. 471 (DANDAPANI v. ADDITIONAL GIFT TAX OFFICER, CUDDALORE). In the said decision, a Division Bench of this Court, has laid down as follows:-


?... R.20 of O.5, C.P.C., provides for substituted service, the main purpose of it is to bring it to the notice of the person to whom it is intended. Substituted service cannot be regarded as an idle formality to be gone through. The Code intends it as a substitute to actual, personal service. Unfortunately the learned Subordinate Judge appears to have thought that as substituted service had been ordered by the Court and effected, the question of the sufficiency of it will no longer arise. That however is not the correct way of approaching the question. A valid substituted service of a notice should conform to the conditions prescribed in O.5, R.20, C.P.C. If it does not conform to that rule, service will have to be regarded as not in accordance with law and therefore not sufficient.....?


(iii) 1990-2-L.W.27 (Balu, C.A. v. G.Joseph Raj) (DB). In the said decision, the proposition of law laid down in the decision reported in 1963 (76) L.W. 471 (referred to supra) has been relied upon and the Division Bench has laid down as follows:-


?As we could see from the extract, O.5, Rule 20 (1) of the Code lays down that there must be satisfaction on the part of the Court that there is no reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. The resort to substituted service is not a matter of course. It could also be stated that there is a duty cast on the Court to record in writing the factum of its own satisfaction about the defendant's evasion of service. But, at least there must be an indication that adequate and convincing materials were placed before the Court for it to arrive at the satisfaction that the defendant was keeping out of the way for the purpose of avoiding service or the summons could not be served in the ordinary way. Without the satisfaction of the condition, namely, that the defendant is keeping out of the way to avoid service, the Court will not be in order to direct substituted service; The non-fulfilment of the condition set down in the provision, the satisfaction of which is necessary before the Court orders substituted service would amount to a material irregularity justifying the setting aside of an ex parte decree. In such a contingency, the Court could hold that the defendant had not been properly served, as required by law. Sub-rule (2) of Rule 20 of Order 5 of the Code says that service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Hence, the rigour with regard to fulfilment of the condition before ordering substituted service cannot be lost sight of. ....?


(iv) 2007-2-L.W.886 (Manuel v. The State of Tamil Nadu & 2 others). In this decision, a learned Single Judge of this Court has followed the aforesaid legal principles and has laid down as follows:-


?7. .... A plain reading of Order 5 Rule 20 (1) and (1A) of C.P.C. would show that the Court should have satisfied itself that there are reasons to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. If only such a satisfaction is arrived at and after recording the said satisfaction, the Court is empowered to order for substituted service including an advertisement in any newspaper. But in this case, the said procedure has not followed by the learned Subordinate Judge.?


(v) 1988-2-L.W. 509 (Pattammal, M. alias Murugayee v. R.Velan Jagannathan (D.B.). In the said decision, it has been held as follows:-


?If the defendant shows that in spite of substituted service he had no knowledge of the suit on the date of hearing, the ex parte decree shall be set aside. This will be so irrespective of any long lapse of time after the ex parte decree has been passed.?


(vi) (2006) 12 SCC 104 = 2007-2-L.W. 509 (Tea Auction Ltd. v. Grace Hill Tea Industry). In the said decision, it has been laid down as follows:-


?12 ..... In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.?


8. I have carefully considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.


9. At the outset, it has to be pointed out that the alleged service of summons by the Process Server by affixture on the outer door of the suit property and the return of the notice sent through post with the postal endorsement ?door locked intimation delivered? have not been considered to be sufficient service by the Execution Court and that is the reason why, substituted service has been ordered by way of publication in the newspaper. It is also pertinent to point out that the summons through Court and notice by post have been ordered only once. Since, as aforesaid, the summons sent through Court and the notice sent by post have not been considered to be sufficient by the Execution Court itself, the contention of the learned senior counsel for the petitioners that the same will amount to proper service cannot be countenanced and the decisions referred to and relied upon by the learned senior counsel has no relevance.


10. Since admittedly, in these cases, the notice sent by post has not been refused to be received by the respondents, the decisions reported in AIR 1981 SUPREME COURT 1284 (referred to supra) has no relevance. Similarly, for the aforesaid reasons, the decisions reported in 2005 (4) CTC 30 (referred to supra) and AIR 1989 SUPREME COURT 630 (referred to supra) have no relevance.


11. The main question to be decided in these Civil Revision Petitions, in the light of the submissions made by the learned counsel on either side, is as to whether the Execution Court was justified in ordering substituted service by publication in the newspaper and whether the Execution Court before ordering substituted service has complied with the provisions contained under Order V Rule 20 CPC.


12. Admittedly, as seen from the docket entries, on 08.12.2005, it has been noted by the Execution Court, as follows:-


?R.1 to R.5 not served as door locked - notice affixed in front of the locked door. Fresh notice to Respondents by speed post 10.1.2006?


When as per the Process Server's report, it has come to the notice of the Execution Court that the door of the suit property has been locked, fresh notice to the respondents 1 or at least to respondents 2 to 7 ought to have been ordered to be sent to their residential address, but no such notice has been ordered, but notice by speed post has been ordered only to the address to which the summons was sent. It cannot be said that the petitioners were not aware of the residential address of respondents 2 to 7. It was strenuously contended before me by the learned senior counsel for the petitioners that the respondents were not carrying on business in the suit properties and it was kept locked and it was also the contention of the petitioners in their counter. When that being so, the petitioners should have taken notice to respondents 2 to 7 to their residential address, but, unfortunately, the summons and notice have been taken both through court and post only to the address of the suit property, knowing fully well that the door is kept locked and the summons and notice will not be served personally on the respondents.


13. In such circumstances, this Court is of the view that the Execution Court ought to have ordered fresh notice to the first respondent to the place, where the first respondent is carrying on business and to respondents 2 to 7 to the address where they are residing. But, instead of doing that, fresh notice by speed post has been ordered only to the address of the suit property and after the return of the notice sent by post with the endorsement ?door locked intimation delivered?, straight away substituted service has been ordered. It is un-understandable that when the door is found locked to whom the intimation was delivered by the postman.


14. Whether the aforesaid return made by the Process Server and the postal department will justify the ordering of substituted service has to be considered in the light of the provisions contained under Order V Rule 20 of the CPC.


15. Order V Rule 20 (1) CPC reads as follows:-


V. ISSUE AND SERVICE OF SUMMONS


...


20. Substituted service. - (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.?


A reading of the aforesaid provisions shows that before the power under this rule is exercised and substituted service of summons is ordered, one of the following conditions must be fulfilled to the satisfaction of the Court, (i) the defendant is keeping himself away to is avoid service of summons; or (ii) for any other reason, the summons cannot be served in the ordinary way; non fulfilment of either condition necessary for exercise of power would amount to material irregularity and the order is liable to be set-aside. Before substituted service is ordered, the Court must be satisfied that the condition precedent required for exercise of power existed, namely, that the defendant was keeping himself away with a view to avoid service of summons or, for any other reason, summons cannot be served in the ordinary way. The Court should record such finding though recording of reasons may not be necessary.


16. The words ?for any other reason? found in Order V Rule 20 (1) of the CPC are wide enough to cover cases wherein courts may order substituted service where a summons cannot be served in the ordinary way. The defendant may not be avoiding or evading service of summons and yet it may not be practicable to effect personal service upon him, e.g., where the defendant is a pardanashin lady, or is missing, or her whereabouts are not known, or defendants are unascertained, or it could not be ascertained whether they are dead or alive, or the defendant is residing at a place occupied by enemy country. In such cases, the power under this rule can be exercised by the Court.


17. It has to be pointed out that a perusal of the materials available on record does not reveal that the Court below has recorded its satisfaction that the respondents were keeping out of the way and are avoiding service of summons. Therefore, substituted service ordered by the Execution Court is not in accordance with Order V Rule 20 of the CPC.


18. In the decision reported in 2009-5-L.W.1 (referred to supra) a Full Bench of the Apex Court has, in a similar circumstances, held that direction for substituted service under Order V Rule 20 can be passed only when the Court is satisfied ?that there is reason to believe that the defendant is keeping out of the way for the purpose of evading service, or that for any other reason the summons cannot be served in the ordinary way. In the said decision, it has been further held that as the Court found that the service was not proper and if the service is not proper, the Court should have directed another service in the normal manner and should not have accepted the plea of the appellant for effecting substituted service. The said decision squarely applies to the facts of these cases.


19. As has been laid down in the decisions reported in 1963 (76) L.W. 471 (referred to supra) and 1990-2-L.W.27 (referred to supra) by two different Division Benches of this Court, substituted service cannot be regarded as an idle formality to be gone through. A valid substituted service of a notice should conform to the conditions prescribed in Order V Rule 20 of the CPC. If it does not conform to that rule, service will have to be regarded as not in accordance with law and therefore not sufficient.


20. In the decision reported in AIR 2009 MADRAS 114 (referred to supra) a learned Single Judge of this Court, basing reliance on the following passage, namely, ?Learned counsel for the appellants contended that the trial court has acted in violation of the procedure prescribed under Order 5 of the Code of Civil Procedure, in issuing summons to the defendants. He further contended that the substituted service can be resorted to only when the court is satisfied that the defendant is avoiding the service or the service cannot be effected in an ordinary way. The trial court having not passed any order about the satisfaction as envisaged under the Code, it was not open to the trial court to order for substituted service. This submissions need not detain us any longer. On the facts of the case the court's satisfaction

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is implicit in the order directing service by publication?, has held in the light of the facts of that case, as follows:- ?31. In the light of the decisions of the Supreme Court and the various High Courts, it is held that the Court is not expected to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 which is not mandatory and so, the order of substituted service passed by the executing Court is valid in the eye of law and it does not suffer from any illegality. ....? 21. In the aforesaid passage extracted from the decision of the Apex Court by the learned Judge, it is seen that the Apex Court has observed on the facts of that case that the Court's satisfaction is implicit in the order directing service by publication. But in the decision of the learned Single Judge, the citation of the Apex Court is not mentioned and the facts of that case also are not available. But, however, only in the light of the facts of that particular case, the Apex Court has observed that the Court's satisfaction is implicit in the order directing service by paper publication. The Apex Court has not held that it is not necessary for the Court to record its reasons as to the satisfaction gained for the purpose mentioned in Rule 20 of the CPC. It may be true that reasons as to the satisfaction arrived at by the Court need not be recorded, but the order directing substituted service should indicate the application of mind by the Court below and its satisfaction should be recorded. But in these cases there is absolutely no material available on record to indicate the application of mind by the Execution Court and the Execution Court has not recorded its satisfaction, as contemplated under Order V Rule 20 of the CPC. Further, the facts of these cases also does not warrant a direction for substituted service. Therefore, the aforesaid decision of the learned single Judge of this Court is not applicable to the facts of these cases. 22. In these cases, the respondents have approached the Court immediately within the statutory time specified and in such circumstances, the discretion is normally exercised in their favour, provided the absence was not mala fide or intentional. When the Court below has come to the conclusion that the service of summons on the respondent is not sufficient or proper and the Court below has rightly exercised its judicial discretion, this Court is not inclined to interfere with the order passed by the Court below. It is well settled that a party to a proceeding should be afforded with a fair opportunity to contest the case on merits. 23. Learned senior counsel for the petitioners submitted that when admittedly the exparte decree passed in the suit has not been set-aside, restitution cannot be ordered. It is true that the exparte decree has not yet been set-aside. But, it has to be pointed out that the order directing delivery of possession passed in the Execution Petition has been set-aside. Only pursuant to the order directing delivery of possession in the Execution Petition, delivery has been effected and once such an order has been set-aside, then, it automatically follows that the delivery of possession effected pursuant to such an order cannot be kept intact. Therefore, the Court below is right in ordering redelivery of possession of the suit property to the respondents herein. 24. For the aforesaid reasons, the above Civil Revision Petitions are dismissed. However, there will be no order as to costs. Consequently, the connected MP is closed.
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