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Sakina vs Gauri Sahai

High Court Of Judicature at Allahabad|11 March, 1902


JUDGMENT John Stanley, C.J. and Burkitt, J.
1. This is an appeal from an order of the Subordinate Judge of Moradabad refusing an application made by the defendant, the present appellant, to have an ex parte decree obtained against her set aside under the provisions of Section 108 of the Code of Civil Procedure, on the ground that she was not duly served with the summons. It appears from the evidence of the process-server that he attended at the house of the defendant, and learnt on inquiry that she was not present in the house, but had gone to Seana, in the district of Bulandshahr. Without further attempt to serve the summons on the defendant personally, he affixed the summons to the outer door of the house in which she had resided. This was clearly not proper service within the provisions of the Code of Civil Procedure, Where the serving officer finds a defendant to be away temporarily from home and knows where he is, it is not good service if he thereupon does no more than fix the summons to the outer door. He must make further efforts to effect personal service. The Subordinate Judge ought in our opinion, under the circumstances, to have set aside the ex parte decree, and allowed the defendant an opportunity of defending the suit. We accordingly must set aside his order, and direct that the decree passed ex parte be set aside, so far as the appellant is concerned, and the case re-heard upon the merits as against her. The appellant is entitled to her costs.
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Sakina vs Gauri Sahai


High Court Of Judicature at Allahabad

11 March, 1902
  • J Stanley
  • Burkitt