Harilal, J.
This Mat.appeal is directed against the judgment and decree passed in O.P.No.1099/09 of the Family court, Kottayam at Ettumanoor. The appellants are defendants in the above original petition. The 1st appellant is the husband of the petitioner and the appellants 2 and 3 are the father and mother of the 1st appellant. The original petition was filed for realising Rs.3,50,000/- with 9% future interest and also to recover the scheduled 37 ½ sovereigns of gold ornaments or its value of Rs.4,60,500/- from the appellants and their assets either severally or jointly. The 3rd respondent in the original petition filed a written statement denying the claim raised in the original petition. According to her, the respondents were not aware of the weight or particulars of the gold ornaments belonging to the respondent and the gold ornaments were with the petitioner always.
2. In the trial, the petitioner therein was examined as PW1 and another witness was examined as PW2 and Exts.A1 to A6 were marked. The 3rd respondent in the original petition was examined as RW1, the 2nd respondent was examined as RW2 and Exts.B1 to B10 were marked. After considering the pleadings, the court below framed the issue whether the entrustment of amount and gold ornaments stated in the original petition is true and whether the decree for return of the same is allowable ?
3. After considering the evidence on record, the court below passed a decree, allowing the respondent herein to realise Rs.3 lakhs with 7% interest from the date of the suit ie., on 5.11.2009 and 28 sovereigns of gold ornaments or its present approximate value of Rs.3,64,000/- with 7% interest from the date of judgment. The respondent was also allowed to realise her cost of Rs.2,000/- from the appellants. Aggrieved by the judgment and decree, this appeal is filed on various grounds.
4. Though this appeal is filed on various grounds, the learned counsel for the appellants mainly focused on the material procedural irregularity which would vitiate the entire proceedings against the 1st appellant. The learned counsel further drew our attention to the proceedings by which summons had been issued and served to the appellants. It is contended that, though, summons had been issued to all the three appellants, the summons issued against the 1st appellant had been returned unserved stating that he is abroad. Thereafter, no steps had been taken to effect service of summons against him as provided under Order V of the Code of Civil Procedure. The court below also has omitted to verify whether the summons had been duly served on all the respondents in the original petition, before scheduling the case in the special list for trial. Though the summons against the 2nd appellant/2nd respondent had been served by affixture, he has not filed any written statement. The sum and substance of the arguments advanced by the learned counsel for the appellants is that the decree had been obtained behind the back of the 1st appellant and the entire proceedings culminated in passing of the judgment and decree are vitiated by material irregularity and illegality. Thus, the impugned decree is not an enforceable one against the 1st appellant and the same is liable to be set aside at the threshold and remanded back to the trial court for considering the matter afresh, after serving summons against the 1st appellant in accordance with the procedure laid down under Order V of CPC.
5. Per contra, the learned counsel for the respondent advanced arguments to justify the maintainability of the impugned judgment and decree. The learned counsel further drew our attention to the written statement filed by the 3rd appellant and contends that the 3rd appellant has filed the written statement denying the averments in the petition for and on behalf of the 1st and 2nd appellants also.
The sum and substance of the arguments is that the written statement filed by the 3rd appellant shall be deemed to be a written statement filed by the 1st and 2nd appellants also.
6. In view of the rival submissions at the bar, the only question to be considered in this appeal is whether the summons has been duly served to the 1st appellant in accordance with the Rules as provided under Order V of the CPC. Since it is a factual dispute, we have perused the summons issued to the 1st appellant. Going by the summons, it could be seen that the processor after effecting service of summons against the appellants 2 and 3 by way of affixture under Order V Rule 17 of CPC, stated that the 1st appellant is abroad and thereby returned. Thus it could be seen that as per the endorsement in the summons, the summons has not been duly served in accordance with law. The respondent has no case that after the return of summons, as referred above, the respondent has taken steps as provided under Order V of CPC for effecting substituted service of summons against the 1st appellant. Thus, the respondent has no case that summons has been duly served on the 1st appellant in accordance with the procedure under law.
7. But his argument is that the written statement filed by the 3rd appellant has to be treated as the written statement filed for and on behalf of the appellant nos.1 and 2 also. We are unable to countenance the arguments advanced by the learned counsel for the respondent in view of the averments in the written statement filed by the 3rd appellant. In the written statement filed by the 3rd appellant, there is no averment to the effect that the written statement was filed under the authorisation of other respondents in the original petition or for and on behalf of them also. In the absence of authorisation, the remaining part of the written statement cannot be treated as one averred for and on behalf of other respondents also.
8. Thus, in the light of the above discussion, we find that the judgment and decree passed against the 1st appellant is vitiated by material procedural irregularity, as the same had been passed without granting an opportunity to contest the original petition to the 1st appellant, the real contestant. Hence, we set aside the decree and judgment passed by the court below and the case is remanded to the trial court for fresh trial, in accordance with the law. The parties shall appear before the trial court on 6.1.2015.
In the result, this Mat.appeal is allowed.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A.to Judge Sd/-
K.HARILAL, Judge.