HIGH COURT OF CHHATTISGARH AT BILASPUR APPUCANT NON-APPLICANT RESONDENTS APPLICANTS CIVIL REVISION No. 132/2007 Krishna Prasad S/o Late Thaknarayaa, Aged about 55 years, R/o Village Bhagwanpur, TalisU Kusini, distdct Siirguj'a (CG). YERSUS 1] 2] 3] 4] Basani S/ o Thaku, Aged about 65 years \Mah.avir S/o Thaku, Aged about 50 years, Bofli above R/o Village Sankara, Block Chaiapur, District Guinla (Jharkhaad) Shivratan S/o Gaula, Aged about 45 years, R/o viUage Parsa, Tahsil Kusmi, District Siirguja (CG) •respondent/respondent State of Chhattisgarh, Through CoUector, Surguja, Ainbikapur (CG). CIVIL REVISION UNDER SECTION 115 OF CIVIL PROCEDURE CODB. (8B :Hon?ble Mr. T.P.Sharma, J.) Present:- Shri Manoj Paranjpe, Advocate for the applicant. Shri V.K. Pandey, Advocate for the respondents N0. 1 & 2. Shri Sangeeta Mishra, P.L. for the State/respondent N0. 4. None for the respondent N0. ORAL- ORDER (Passedoa 24/11/2009) By ttiis civU revision applicaat has chanenged legatity aad propriety of tlie order dated 10/10/07 passed by Second CivU Judge Class-1, Ambikapur m civU suit N0. 5/2004 whereby learaed Second CivU Judge Class-ly Ambikapur has aUowed fhe appUcaUon for setting aside fhe exparte decree dated 15/5/04 passed ia civil suit No. 59-A /03 on fhe ground Uiat summous has not been duly servred upon fhe non-appUcaats No. 1 to 3 and nou-appUcaiits No. 1 to 3 have filed fhe application for settitig aside ttie exparte judgment aad decree wifhia one monfh of tlie knowledge offhe decree ie. 22/8/04. Leamed counsel for fhe parties are heard. ^ ,/^^\ ^f ^ ^^ "^&^ -2 Undisputed facts offhe case is on 15/5/04 fhe Court below has passed exparte judgment and decree ia civU suit N0, 59A/03 agam.st fkLe non- appUcaats N0. 1 to 3. Copy of fhe judgraent aiid decree was filed before fhe Revenue proceediag on 15/6/04 in presence of fhe Laxnian son of respondent N0. 2 aad brofher ofrespondeat N0. 1. Pi'esent respondents No. 1 to 3 have filed fh.e appUcation for settmg aside fhe decreed passed exparte on 22/9/04 on fhe ground fhat suinnions has not been duly ser^ed upon fheni aad ttiey filed fhe petition wifhia 30 days from fhe knowledge of the judgment aad decree ie. 22/8/04. They have also filed ftie application for condonation of delay ia fiUng of fhe application under Section 5 of the Limitation Act. After affbrdiag aa opportunily of hearing to ttie parties leamed Second Civil Judge Class-1 has aUowed fhe appUcation aad set aside fhe judgment aad decree passed exparte on fhe ground fhat summons were not duly ser^ed upon the respondents N0. 1 to 3 aad fhey came into knowledge offhe judgment aad decree only on 22/8/04. Learaed counsel for tiie applicaat vehemently argued that rcspondents were under obUgation to prove fhe fact suininons were not duly served upon th.em and only they caoie iato knowledge of fhe fact of the judginent and decree on 22/8/04 even after filiag of fhe copy of fhe judgment aad decree by the petitioner before Revenue Courts where son offlie respondent No. 2 was present to represent them on 15/6/04. Learaed counsel for fhe appUcaat further argued tiiat respondents have not inentioned fhe date when fhey came to know about fhe judgiaent aad decree ia fheir appUcation which was crucial for fhem. The evidence of Mahaveer aiid Laxraaa reveals tfaat Laxmaa came to know fhe facts of judgment aad decree on 15/6/04 but only wifh a view show fhat the -3- appUcation was wifhia time they have pleaded and adduced fhe evidence that respondents only carae to know fhe facts on 22/8/04, 7, On fhe other haad, leamed counsel for fhe respondents No. 1 & 2 opposed fhe civU revision and subiaits tihiat court below has rightly allowed fhe appUcation aad set aside the judginent aad decree. 8. Order ioipugned reveals fhat Court has not directed fhe issuaiice of service fhrough Registered Post b.ut suinnions has been served upon fhe Ghaashyam Suigh, brother of Maveer fhrough registered inode without aiiy order of the court such service is virtually parse illegal, No personal service has been effected on the respondents. 9. As regard the question of fhe knowledge of fhe judgBient and decree is conceraed the burden to prove fhese facts was upon fhe respondents No, 1 to 3, Uiey have adduced evidence to show that alfhough the copy oftlie judgnient and decree was filed by fhe appUcafit before fhe Revenue Court ui presence of fhe son of respondent No. 2 namely Laxniaa but Laxiaaa has not mtimated fhese facts to them before 22/8/09 aad he has uitiaiated fhe respondents ia fhe nionfh of August-2004 adinittedly, fhese facts were within. the knowledge of Laxniaa aad respondent Mahaveer and fhey have deposed ia fheir evidence these evidence has not been chaUenged by tlie petitioner tliat prior to 22/8/04, these facts was iD-tmiated to fhe respondents or fhey came rato knowledge of aforesaid fact by aay other sources, ia absence of such evidence the Court below has righUy relied fhe evidence of respondents N0, 1 & 2 aad stateinent of Laxinan, On close scrutiny of tlie order impugned, I do not find any Ulegalily or iaipropriety warraatuig mterference in exereise of revisional jurisdiction, Court below has nghUy atlowed the appUcation for settio-g aside fhe exparte judgment aad decree, Consequenfly, fhis civU revision is Uable to be dismissed aiid it is hereby dismissed. 10. No order as to costs. Sd/- T.P. Sharma Judge f'-