1 ao-769-06.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.769 OF 2006 Zumbarlal Manikchand Bafna & Ors. ..Appellants Vs. The Sangli Bank Ltd. ..Respondents Mr. Mohan Pungliya for the Appellant Mr. Nana Yelkar for Respondent No.2 CORAM:- J.H. BHATIA, J DATED :- JUNE 24, 2011. P.C. 1 Heard the Learned Counsel for the Parties. 2 The Appeal is preferred by the original Defendant Nos.7 and 8 in Special Civil Suit No.1111 of 1991 filed by the Plaintiff/Respondent No.1 Sangli Bank. Respondent No.2 to 7 in this Appeal are the Original Defendant Nos.1 to 6. The Suit was filed by the Plaintiff for recovery of certain amounts. The loan was obtained by the original Defendant Nos.1 to 6 from the Plaintiff Bank and the Defendant Nos.7 and 8 are the guarantors. Defendant Nos.1 to 6 had appeared and contested the suit. Defendant Nos. 7 and 8 could not be served with a suit summons by normal procedure and the summons were served by publication in the daily news paper ‘Prabhat’. After that also Defendant Nos.7 and 8 did not appear and the Suit proceeded exparte against them. Accordingly the decree was 2 ao-769-06.sxw passed against all the Defendant Nos.1 to 8 on 16-12-1996. When the execution of decree was commenced and property of Defendant Nos.7 and 8 was sought to be attached in execution of that decree, they filed Misc Application No.46 of 1998 under Order 9 Rule 13 of CPC for setting aside exparte decree against them. According to them they were not properly served with suit summons. The Learned Trial Court rejected that application by impugned order dated 31-7-2006 3 From the record as well as the observations made by the Trial Court in paragraph 8 of the impugned order, it is clear that Defendant No.7 was not residing where the suit summons was sent to him. It was recorded that he had left the village and his address was not known. As far as, Defendant No.8 is concerned, it appears that when the bailiff went to serve the suit summons to Defendant No.8, he was told that Defendant No.8 had gone to Pune and therefore, the summons could not be served on him on that day. From the record, it appears that neither the bailiff affixed a copy of the suit summons against the Defendant No.8 at his house nor it was served on any adult member of his family, as permissible under Order 5 Rule 15 or Rule 17 of CPC. There is nothing to show that any order was passed for substituted service by affixing the copy of the summons on conspicuous place of the Court house as well as on the conspicuous part of the house in which the Defendant No.8 was known to have resided. Only because Defendant No.8 was not available at his house when the bailiff went to serve the summons on the particular date, it cannot be said that he was either avoiding the service or that he was not likely to be available within the reasonable time. In view of this, the service against the Defendant No.8 does not 3 ao-769-06.sxw appear to be proper. The Learned Trial Court observed that Defendant Nos.1 to 6 had contested the matter and therefore, it cannot be said that no intimation was given to the Defendant Nos.7 and 8. This observation is without any basis. Defendant Nos.1 to 6 were the borrowers while Defendant Nos.7 and 8 are said to be guarantors. The defences available of Defendant Nos.7 and 8 could be different from the defences which could be taken by Defendant Nos.1 to 6. Merely because Defendant Nos.1 to 6 were served and had contested the suit, it cannot be presumed that Defendant Nos.7 and 8 were also duly served or were informed about filing of the suit. 4 From the facts, it appears that Defendant No.8 was not properly served. As far as Defendant No.7 is concerned, technically service can not be called wrong, but it appears that Defendant Nos.7 and 8 both were brothers and were residing together. In all probabilities, the defences available to both of them may be common. In view of the facts and circumstances, the exparte decree against Defendant Nos.7 and 8 is liable to be set aside 5 For the aforesaid reasons, the Appeal is allowed. The impugned order is set aside. The exparte decree to the extent of Defendant Nos.7 and 8 only, stand set aside without disturbing the decree against Defendant Nos.1 to 6 who had contested the suit. As far as, Defendant Nos.7 and 8 are concerned, the Special Civil Suit No.1111 of 1991 is hereby remanded back to the Civil Judge, Senior Division, Pune for disposal as per law after giving reasonable opportunity to Defendant Nos.7 & 8 to file Written Statement. Plaintiffs and Defendant Nos.7 and 8 shall appear before the Trial Court on 16th August, 2011. 4 ao-769-06.sxw 6 In case, the decree against Defendant Nos.1 to 6 has been fully executed and satisfied, the Plaintiff bank will have liberty not to press the suit against Defendant Nos.7 and 8. Records and proceedings be returned back. (J.H.BHATIA, J.)