Krishna Padayachi vs Sri Vinayakaswamiar

Venkatasubba Rao, J.—This case raises a point in regard to the applicability of Article 164 of the Limitation Act. The defendant was served

by substituted service and a decree was passed on the 20th of June, 1927, against him ex parte. He applied on the 6th of March, 1928, for the

setting aside of that ex parte decree. The question is, does time run from the date of the decree, or from the date when it came to his knowledge?

Article 164 runs thus-

By a defendant, for Thirty days from the date of

an order to set aside the decree or where the summons

a decree passed ex was not duly served,

parte, when the applicant has knowledge

of the decree.

Can it be said that in every case where the summons is served by substituted service, the starting point is not the date of the decree but the date

when it first comes to his knowledge? To accept such a contention would be equivalent to holding that substituted service is in no circumstances

due service. There seems to be no warrant for this position. The CPC prescribes several modes of serving the defendant and one such mode is

what is known as substituted service. It is impossible to hold that a mode of service prescribed by the Code is not due or proper service. It is to be

further noted that the words ""duly served which occur in Article 164 are also to be found in Order IX, Rule 13, Civil Procedure Code. It enacts

that where a decree is passed 6x parte the defendant may apply for an order to set it aside; and the section proceeds to say (I am quoting only the

relevant portion),

...if he satisfies the Court that the summons was not duly served...the Court shall make an order setting aside the decree.

...If when the defendant is served by substituted service, it is to be held that he is in no case ""duly served"", what follows? Under this provision, the

defendant has merely to show that service was effected by substituted service and he is entitled as a matter of course to have the ex parte decree

set aside. This, apart from every other consideration, shows that the construction which I have referred to, of the words ""duly served"" must be

rejected. With all respect, I therefore, disagree with the decision of Mr. Justice Srinivasa Iyengar in Vitta Venkatachalam v. Sivapuram Subbiah

108 Iad. Cas. 889 : AIR 1928 Mad. 655 : 54 M.L.J. 448. My view receives support from a decision of a Bench of this Court in Sharifa Beeby v.

Abdul Salam 110 Ind. Cas. 490 : AIR 1928 Mad. 815 : (1928) M.W.N. 49 : 28 L.W. 513 : 61 M. 860 : 55 M.L.J. 565. I accordingly hold that

even in the case of substituted service, if the summons was duly served, the terminus a quo under Article 164is the date of the decree and not the

date when it first comes to the knowledge of the defendant.

Then comes the question in the case of substituted service, when is the defendant ""duly served"" and when not? It is contended for the

respondent that the Court cannot examine the propriety of the order directing substituted service; for it is said that under the Article, the only point

which the Court can consider is, whether the summons was duly served, that is, whether the order directing substituted service was duly carried

out. The order may be right or wrong; it may be or may not have been made on sufficient material; the Judge when ordering substituted service

may have acted with grave irregularity still it is contended that the Court under Article 164 is not concerned with the regularity of the propriety of

the order and that its duty is confined to enquiring whether this wrong order was rightly carried out. I cannot accept this construction. What in the

case of substituted service the Article intends to lay down is when the order is rightly made and the service directed by the order is properly

effected, knowledge of the defendant is immaterial and time runs from the date of the decree. This is the natural and reasonable meaning of the

section.

This view is implied in the decision in Narasimha Chettiar v. Balakrishna Chetty 101 Ind. Cas. 651 : 52 M.L.J. 512 : AIR 1927 Mad. 487 : 38

M.L.T. 359 which is cited with approval in the cage already referred to Sharifa Beeby v. Abdul Salam 110 Ind. Cas. 490 : AIR 1928 Mad. 815 :

(1928) M.W.N. 49 : 28 L.W. 513 : 61 M. 860 : 55 M.L.J. 565. The Lahore High Court has taken the same view in 1922, in Ram Kishan v.

Mula 69 Ind. Cas. 467 : AIR 1924 Lah. 191.

Let me now examine whether the order made, directing substituted service can be sustained. The first summons gave the name of the

defendant''s village correctly but the name of the Taluk where the village is situate was wrongly given. The result was that the summons was sent to

a wrong officer who returned it. In the second summons again, the same mistake was repeated and it shared the same fate. The third summons

omitted to contain the name of the defendant''s father and the Nazir returned it saying, that it was impossible to serve it, as there were four men

having the defendant''s name. A fourth summons was then taken out. This time, there was no mistake made but it was found by the process server

that the defendant''s house was closed. Learning from neighbours that the defendant had left the place, he returned again the summons unserved.

On this, the plaintiff filed an application for substituted service supporting it by an affidavit. In that affidavit, these facts were not properly

mentioned. The statements made were misleading and the Judge thereupon made an order for substituted service. In my opinion the order was

improperly obtained, it was made on insufficient material and cannot be sustained. I, therefore, hold that the summons was not duly served within

the meaning of Article 164 and the time accordingly runs not from the date of the decree but from the date when it first came to the knowledge of

the defendant.

The lower Court has given no finding on this matter. I direct it to try the question,

When did the defendant first have knowledge of the decree?

After allowing the parties to adduce evidence I further direct the Court to return a finding in three weeks from the receipt by it of this order.

Time for objection one week thereafter.

[Incompliance with the order contained in the above judgment the Revenue Divisional Officer of Kumbakonam submitted the finding that the

petitioner was aware of the decree as soon as it was passed and that this contention that he came to know of it nearly 9 months after the decree

was false. His Lordship accepted the finding and dismissed the civil revision petition with costs.]