Patna High Court
Musammat Najmunnisa vs Jagmohan Lall And Ors. on 18 December, 1922
Equivalent citations: 72IND. CAS.910
JUDGMENT Ross, J.
1. This is an appeal against an order of the Subordinate Judge of Gaya dismissing art application to set aside an ex part decree passed in a suit on a mortgage. The appellant is one Bibi Najmunnissa and the mortgage-bond in suit was executed by her in the pen of her husband and general attorney, Mazharul Huq. In her present application she alleges that she ha been residing in Mauza Narhat for the last four or five years and no summons was served upon her in the suit. She further alleges that the opposite party No. 10, that is, her husband, Mazharul Huq, has been acting in collusion and concept with the opposite-party Nos. 1 to 9, the plaintiffs in the suit. The opposite party allege in reply that summons was duly served and deny the allegation of collusion with the petitioner's husband. The learned Subordinate Judge held that Mazharul Huq was the Am-Mukhtor of the petitioner and that service through him was good. He further held that the residence of the petitioner was at Kaz chak.
2. The evidence of service of summons given on behalf of the opposite party consists of the statements of Raghu Nath Singh, the peon, and Shankar Singh, the identifie. The peon says that he met the defendant's husband Mazharul Huq in her house at Makhdumpui Kazichak and he refused to accept his summons as well as the summons on Bibi Najmunnissa. Then the peon affixed the summons and copies of plaint on the house facing east. This evidence is corroborated by the identifier. It is objected to the evidence that this is no proper service under Order V, Rule 17. It is contended, in the first place, that service could only be made by affixing the summons to the ouse when, after using all due care and dil gence, the peon had been unable to find the defendant; and, in the second place, that the summons was not affixed to the house where the defendant ordinarily resided. With regard to the first objection, it is suggested on behalf of the respondents that the husband was an agent empowered to accept service and that the service on him was, therefore, good under Rule 12. The petitioner says that she had withdrawn the power-of-attorney from her husband. I shall deal with this point later. But the power of attorney itself has not been produced. An abstract from the register has been proved and it does not show that Mazharul Haq had authority to accept service of summons. He must, therefore, in this matter be regarded merely as a male member of the family of the defendant. As to the first objection, that it is not shown that the petitioner could not be found, it is sufficient to say that the petitioner is a parda na hin lady and, therefore, not directly approachable. It was held in Khiroda Sundari Das v. Nabin Chandra Saha 30 Ind. Cas. 64 : 21 C.L.J. 653 : 19 C.W.N. N. 1231 that where a par da nashin lady is no table to accept service personally and has no agent empowered to accept service on her behalf and ha also no adult member in he family on whom service may be effected, on such a case a valid service is effected under he provisions of Rule 17 if the serving officer affixes a copy of the summons on an outer door or some other conspicuous part of the house in which the lady ordinarily resides. The question is thus reduced to the second objection, as to whether in fact the petitioner was ordinarily raiding at Kazipur or not.
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3. On a consideration of the whole evidence, I am of opinion that the learned Subordinate Judge's right in his decision in this case and that the appeal should be dismissed with costs.
Jwala Prasad, J.
4. I agree.