Whether court can direct the party to serve a bailable warrant to the witness personally?

 It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.{6}

7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants.

Rajasthan High Court

Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978

Print Page

Whether it is mandatory to affix summons to outer door of defendant's house if he refuses sign on acknowledgment?

When the Bailiff had not affixed copy of summons to the outdoor of the house of defendant after the alleged refusal by him to sign the acknowledgment, then such casual verification by the officer of the Court has no meaning at all. Both the Courts below have erred in holding that the defendant was duly served with summons. In fact, Sushil Kumar's (supra) decision was cited before the learned First Appellate Court, but it was not relied on the ground that in this case defendant had accepted the copies of the summons, but refused to sign the acknowledgment. It appears that learned First Appellate Court failed to consider the wordings of Rule 16 and 17 of O. 5 of the Code. Rule 16 imposes a duty on the process server to obtain signature of the person on whom the summons is being served on the copy of the summons with him. Rule 17 deals with procedure when such person refuses to accept service, etc. It contemplates the situation that defendant has refused to sign the acknowledgement, there is no further bifurcation about refusal before or after acceptance of summons. Therefore, even in case of acceptance of copies of summons, but refusal to sign the acknowledgment by the defendant, the process server was bound to affix a copy of the summons on the outer door of the house of the defendant. There was no proper service of summons in this case. Both the Courts have wrongly accepted the said service as proper service.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 0604 of 2016

Decided On: 05.08.2019

Madan Mohan Gupta Vs.  Ramavati Ramesh Chauvan

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2020(1) MHLJ 951

Print Page

How to execute decree if description of suit property is vague?

 These principles of law would apply to a case wherein the description of the suit property is vague or the suit property is unidentifiable and the mistake has been corrected by the executing court or the clarification has been given by the executing court which amounts to going behind the decree. Similarly, these principles of law would not apply where description of the suit property is clear and the property is identifiable. Between these two categories of cases, there could be an intermediate category where there is some doubt about description of the property. In such intermediate category of cases, the executing court can make efforts to remove the doubt by examining the pleadings of the parties and the findings recorded by the court passing the decree. Some time in such cases, there arises a conflict between the area and boundaries of the suit property. In case of such a conflict, the law is that statement as to boundaries shall prevail. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1209 of 2018

Decided On: 05.12.2018

 Shaikh Jalil  Vs. Mohamed Rizwanul Haq and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.
Citation: 2019(4) MHLJ 348

Print Page