1. This second appeal is by the defendants. The plaintiff's who represent defendants Nos. 11, 12 and 13 in Title Suit loo. 319 of 1957 filed the present suit for declaration that the decree passed in the said Title Suit No. 319 of 1957 was illegal, null and void. It appears that the defendant No. I of this suit had secured a compromise decree in the said Title Suit No. 319 of 1957. The decree was passed ex parte against the present plaintiffs. On an analysis of the evidence the learned trial Court dismissed the suit. On appeal the decision was reversed. Hence, this second appeal by the defendants of this suit.
2. The sole question for decision in this case is whether the plaintiffs or their predecessors were served with the summons of the previous suit. The serving peon had not been examined. From the return of the service it appears that the peon effected the service by hanging the summons on the fencing of the present plaintiffs. The learned Court of appeal below has examined the evidence tendered by both the parties and had come to the conclusion that the summons was not served on the present plaintiffs or their predecessors. In addition to the-- reasonings given by the learned Court below I find on examina--petition of the records that there is no evidence that Order V, rule 19 of the Civil Procedure Code was complied with. Order V, rule 19 reads as follows:- "19. Examination of serving officer.-Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit ; and shall either declare that the summons has been duly served or order such service as it thinks fit."
3. The law lays down that when the peon makes a return under Order V, rule 17 the Court is to examine the peon and to satisfy itself as to the service bat there is no evidence of such action by the Court.
4. So far as the question of title is concerned the learned appellate Court has accepted the plaintiffs' story but that can be only in support of the plaintiffs' case and it has got to be decided in the Title Suit No. 319 of 1957. I find that the learned appellate Court had adverted to all the relevant questions l and has given correct decision. In the facts and circumstances of the case the decree does not appear to be divisible one. Either the plaintiffs will succeed or the defendants. In that view of the matter the whole case should be retried as ordered by the learned appellate Court.
5. There will be no order as to costs.