Sankaralinga Mudali vs Rathnasabapathi Mudali and Another

The Advocate-General raises a preliminary objection to the effect that inasmuch as an order was passed against the 2nd defendant (appellant)

u/s 101, Civil Procedure Code, and as no appeal was made against the ex parte decree so as to enable the appellant to impeach that order, the

appellant was not entitled to make an application u/s 108, raising the same question as had been already decided against him u/s 101, nor should

he be now allowed to appeal against the order made against him u/s 108.

This contention, at first sight, may seem to be reasonable, but having regard to the very wide words ""in any case"" used in Section 108, we are

unable to hold that the defendant was not entitled to make an application u/s 108. That being so, he was u/s 588 entitled to prefer the present

appeal. Nor can we agree with the Advocate-General''s contention that even if an appeal lie and the ex parte decree is set aside, the proceedings

will be futile, inasmuch as the order passed u/s 101 could not be interfered with in an appeal like the present. We think that, if u/s 108 an ex parte

decree is set aside, this necessarily carries with it a reversal of any order previously made u/s 101 refusing to allow the party to appear and defend

the suit. To hold otherwise would lead to an absurdity.

Turning now to the merits, the question whether the serving officer ""cannot find"" the defendant within the meaning of Section 80, is one which

must be determined with reference to the circumstances of each case. If the information given to the serving officer leads him to think that the

defendant is only to be absent for a short time, it may well be that the serving officer should, if possible, wait and endeavour to effect personal

service, Bhomshetti v. Umabai ILR 21 B., 223. Otherwise, and if there is no person who can be served in the absence of the defendant, we see

nothing improper in the serving officer affixing the summons to the outer-door of the defendant''s ordinary residence. In the present case, the

serving officer''s return shows that, according to the information given to him, there was no prospect of his being able to serve the appellant

personally within a reasonable time. He was, therefore, justified in affixing the summons to the door of the house, and the District Judge was

justified in accepting it as a sufficient service.