Substituted service is not necessarily due service and the defendant can challenge the same by showing that he had no knowledge of the suit.

SUBBA RAO, C.J. :- I have had the advantage of reading the judgment prepared by learned brother Bhimasankaram J. I agree with him.

2. BHIMASANKARAM, J. :- The Civil Revision Petition has been directed to be posted before a Full Bench by our learned brother Chandra Reddy J. The question for determination in the case is whether substituted service effected as provided by O. 5, R. 20, Civil P. C., is due service within the meaning of O. 9, R. 13 of the same Code.

3. The facts of the case are these : The petitioner obtained a decree against both the respondents who are father and son. The father was not personally served with the notice of suit and substituted service was ordered against him. As he did not eventually appear in the suit, there was an ex parte decree passed against him. He applied to the lower Court for setting aside the decree on the ground that he had no knowledge of the suit.

Without recording a definite finding as to whether he had or had not knowledge of the proceedings, the learned District Munsif before whom the petition for setting aside the ex parte decree came up for hearing, stated that as the service was only substituted service, he could not have been aware of the suit and set aside the ex parte decree. The plaintiff-decree-holder has come up in revision against the said order.

4. Now, O. 9, R. 13, so far as it is material for the present purpose, is as follows :

"13. (1) In any case in which a decree is passed ex, parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not only served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

5. In this connection, the language of Art. 164, Limitation Act may also be borne in mind, because it also refers to "due" service.

164. By a defendant, for an order to set aside a decree passed ex parte Thirty days The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree."

6. The words "duly served", it may be noticed, also occur in Art. 169, Limitation Act and O. 41, R. 21, Civil P. C., which provides for the setting aside of ex parte appellate decrees. The question now is, in cases where only substituted service has been effected on him in terms of O. 5, R. 20, can it be said that the defendant has been "duly served" within the meaning of the above rules or articles?

7. A conflict of views on this point between some earlier and later decisions of the Madras High Court beginning with the year 1926 was noticed in a recent ruling of that Court reported in Bashyam Achari v. Parthasarathi, 1953-2 Mad LJ 371 : (AIR 1954 Mad 195) (A). In that case, the learned Judges while indicating the divergence of opinion, proceeded on the basis that the later decisions took the correct view. We are here called upon to consider which line of decisions has to be preferred.

8. Order 5 deals with the issue of summons to the defendant in order to apprise him of the institution of the suit against him so that he might appear and answer the claim. Rule 9 of that Order prescribes direct service on the defendant or upon an agent empowered to accept service on his behalf. Sub-rule (3) thereof provides alternatively for service by registered post prepaid for acknowledgment. Rule 12 directs that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent would be sufficient.

Rules 13 and 14 enact that summons may be served on a manager or agent of the defendant who carries on any business or work for him, if the suit relates to such business or work, or an agent of the defendant in