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PETITIONER: MST. BHABIA DEVI

       Vs.

RESPONDENT: PERMANAND PD. YADAV

DATE OF JUDGMENT:       24/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition  arises from  the order of the High  Court of  Patna, made  in Appeal from the Original Order No.406/86 on July 24, 1996.      The  respondent   had  filed   a  suit   for   specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served notice but since  she did not contest the suit, ex-parte decree was granted. Subsequently,  the petitioner  filed an application under Order IX, Rule 13, C.P.C. seeking setting aside of the ex-parte decree. Therein, her specific case was that she was not residing  at Garhia  Village and,  therefore, the notice could not  be  deemed  to  have  been  served  on  her.  The endorsement is  not correct.  The question  was gone into by the courts below after recording the evidence of one Laxuman Yadav, Mahendra  Yadav and  process server. It is their case that on  January 15,  1985 when the summons were handed over to Mst.  Bhabia Devi  and when  she was  acquainted with the facts, she  refused to  sign or  put thumb impression on the notice. When  the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984  when the  registered card acknowledgement was sent, she refused to acknowledge it. Under those circumstance, the courts below  have concluded and the High Court has recorded as under:      "Apart from  the aforementioned two      modes for  service of  notice, as I      have already noticed, there was yet      anther  mode   by  way  of  Gazette      publication. An  attempt  has  been      made on  behalf of the appellant to      say that  she being illiterate lady      could not  learn about  the Gazette      publication."      This is  a finding  of  fact  on  appreciation  of  the evidence. Thereby,  it is  clear that petitioner had refused to accept  the notice. Consequently, she was rightly set ex- parte. The  learned counsel  for  the  petitioner  seeks  to contest the  case on  merits. We  cannot go  into the merits since the  appeal was  not subject  matter  in  any  of  the

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appeals filed either under Section 96 or Section 100, C.P.C.      The special leave petition is dismissed.