Shah Shantilal and Co. vs T.E. Shiborwalla

Chandra Reddi, J.—This is a revision petition filed by the defendant against the order of the Second Judge of the Court of Small Causes,

Madras, dismissing an application to set aside an ex parte decree passed on 26th August, 1948. The plaintiff filed a suit against the defendant

residing in Bombay for recovering a sum of Rs. 636 being the amount due to him in respect of goods sold and delivered to the defendant. The suit

stood posted to 4th August, 1948 for hearing, and summons was taken out by the plaintiff but it was not served on the defendant till 2nd August,

1948. On that date the defendant seems to have sent a telegram to the office of the Registrar of the Court of Small Causes, requesting the Court to

grant him time; but this does not seem to have been brought to the notice of the Court on 4th August, 1948, to which date the case was fixed for

Hearing. Since the summons was not returned, it was directed that substituted service should be effected upon the defendant, and the case was

posted to 26th August, 1948, for final hearing. As the defendant did not appear and contest the suit on that day a decree was passed ex parte for

a sum of Rs. 636-4-0.

The defendant filed an application on 27th September, 1948, to set aside the ex parte decree on the ground that he had no knowledge of the

decree till the 5th September, 1948. The learned Judge dismissed the application on the ground that the application was barred by limitation, as it

was not filed within 30 days from the date of the decree. Against this order the unsuccessful defendant has preferred this civil revision petition.

Mr. Balakrishnayya, the learned Counsel for the petitioner, contends that, the view of the learned Judge that the application for setting aside the

ex parte decree is barred by limitation under Article 164 of the Limitation Act is erroneous. According to him the 30 days time prescribed under

Article 164, Limitation Act applies not only to the date of the decree but also to the date of the knowledge of the defendant of the decree. Article

164, provides that the 30 days'' period for filing an application to set aside a decree passed ex parte runs from the date of the decree, or where the

summons was not duly served, when the applicant has knowledge of the decree. Admittedly by the time the application to set aside the ex parte

decree was filed the 30 days time fixed under Article 164 had elapsed from the date of the passing of the decree. The learned Counsel for the

petitioner states that since the petitioner had knowledge of the decree only on the 5th September, 1948, the petitioner was in time in filing the

application for setting aside the ex parte decree on 27th September, 1948. It must be stated that the second part of the Article applies only when a

defendant was not duly served with summons. In this case it is clear from the material on record that on 4th August, 1948, the first hearing date,

substituted service was directed to be effected on the defendant by the Court.

It has been held in a number of cases that substituted service is as effectual as if it had been made on the defendant personally. It was held by

Madhavan Nair, J., in the case reported in Narasimha Chettiar y. Balakrishna Chetti (1936) 59 M.L.J. 512, that for purposes of Article 164.

Limitation Act, a person on whom substituted service was effected must be held to have been duly served and that therefore time ran from the date

of the decree, even though the defendant had no knowledge of the passing of the decree. The learned Judge pointed out that under Order 5, Rule

20, Sub-rule (2) service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. To the same

effect is the ruling of the Calcutta High Court in Kesarchand Keshowji v. Lakhamsi Raisi (1917) 491.O.611, the head note to the decision

correctly represents the view of the learned Judges in that case. It runs thus,

The phrase '' duly served '' in Article 164 of the First Schedule of the Limitation Act is used in the same sense as in Order 5, Rule 19, Civil

Procedure Code. In both places it means served in such a manner as to give the defendant information of the proceedings taken against him.

It is thus clear in the present case that the application filed by the petitioner for setting aside the ex parte decree was barred by limitation, the order

of the lower Court is therefore correct.

In these circumstances the civil revision petition is dismissed with costs.