K.B. Narasimha Chettiar vs K.P. Balakrishna Chetty

Madhavan Nair, J.—The question for decision, in this Civil Revision Petition is whether the respondent''s application"" to set aside the ex

parte decree in S.C.S. No. 296 of 1925 on the file of the Court of the District Munsif of Karur is barred by limitation. The decree was passed on

the 19th of July, 1926. Article 164 of the Limitation Act prescribes 30 days for an application of this nature and time begins to run from the date of

the decree or where the summons was not duly served, when the applicant has knowledge of the decree. The respondent''s case is that the

summons was not duly served upon him'' and that he came to know of the decree about 15 days before he made this application. In order to

succeed in this application, it is clear that the respondent must prove these necessary facts.

In this case the learned Judge who passed the ex parte decree after satisfying himself that there was reason to believe that the respondent was

keeping out of the way from service had ordered that substituted service should be served upon him as presented by Order 5, Rule 20 of the Civil

Procedure Code. The question is whether in the case of substituted service, it can be said that summons is ""duly served"" on the defendant within

the meaning of Article 164 of the Limitation Act. In one part of his judgment, the learned Judge seems to lay down the proposition that the

petitioner cannot be said to have been duly served as summons was not personally served on him, though later on he modified this view by stating

that

if there is evidence to show that the defendant evaded service of process wantonly or with a view to delay a creditor substituted service may'' be

considered to be due service under the Limitation Act, but if there is no evidence of that kind it is not safe to presume that there was due service

under Art 164 of the Limitation Act especially where the process-server''s endorsements are notoriously unreliable.

I think, it is clear, that in the case of substituted service, summons is duly served for the purpose of Article 164 even though it does not in fact

come to the defendant''s knowledge and that time runs from the date of decree see Dittu Ram v. Nawab (1925) 7 Lah L J 448. 1. The Court after

considering the circumstances brought to its notice by the plaintiff directed that substituted service should be effected upon the respondent. Order

5, Rule 20, Sub-rule (2) states that service substituted by order of the Court shall be as effectual as if it had been made on the defendant

personally. If the defendant avers that the order for substituted service was obtained by the plaintiff in an improper or fraudulent way, it is for him

to prove it by giving evidence on that point. No such evidence has been given by the defendant in (his case. He has not examined any witness. The

facts show that two attempts at personal service were made and the respondent''s pleader also sent a notice to the petitioner by registered

post�as ordered by the Court and this was returned with a note by the postman that the addressee refused to receive it. It is thus evident from

the records that application for substituted service was made and the order was obtained by the plaintiff after genuine attempts at personal service

had failed and after the Court was satisfied that the defendant was evading the service of summons. There is no justification for the District

Munsif''s general remark that the process server''s endorsements are notoriously unreliable.

In these circumstances I am satisfied that the summons was duly served in this case and as the respondent''s application was not made within 30

days from the date of the decree, it is clearly barred by limitation under Article 164 of the Limitation Act.

I therefore set aside the order of the Lower Court with the petitioner''s costs here and in the Court below.