JUDGMENT - 1. This is an appeal filed against the order passed by the District Court of Ahraed-dabad refusing to set aside the decree passed ex parte in Divorce Suit No. 16 of 1952. The plain-tiff Ramjibhai Chhotalal filed the suit in the Court of the District Judge at Ahmedabad for a decree for divorce against his wife Bai Shanta.

The summons of the suit was sent to the defendant Bai Shanta by registered post. The packet containing the summons was returned im-served with the endorsement of the postal peon stating that it was refused when tendered. Thereafter the plaintiff filed an affidavit stating that the defendant had come to know that the suit ha.d been filed and with a view to protract the proceedings the defendant had deliberately refused to accept the summons.

The learned District Judge, it appears, accepted the affidavit of the plaintiff and treated the summons as properly served upon the defendant. Thereafter a decree ex parte was passed against the defendant for divorce on 14-7-1852.

2. On 15-9-1953 the plaintiff got married to another woman at Balsar. Thereafter on 16-9-1853, that is nearly 14 months after the date on which the decree ex parte was passed, an application was filed by the defendant for setting aside the decree ex parte on the ground that the summons was never tendered to her and that she had never declined to accept the summons. That application was rejected by the learned District Judge.

The learned Judge Held that the defendant must have known that the plaintiff had obtained a divorce decree against her and that she had not taken any steps to have the decree set aside. The learned Judge was referred to the evidence of one Bababhai Chhotalal, who deposed that it was only after the plaintiff told him that he had obtained a decree for divorce on 14-9-1953 and he communicated the information to the defendant that the defendant came to learn about the passing of the divorce decree.

The learned Judge regarded that evidence of Bababhai as unnatural and refused to believe the same. The learned Judge also pointed out that about the time when the summons was sought to be served on the defendant she was in Ahmedabad and that she must have refused to accept the summons when it was tendered to her.

The learned Judge regarded the service of the summons in the special circumstances of the ease as proper and in order, and he held that the defendant did not care to appear in the suit and, therefore, the decree passed was not liable to be set aside.

3. Mr. patel who appears on behalf of the defendant in this appeal contends that service of summons by registered post is an unsatisfactory mode of service and the invariable practice should be that whenever the defendant appears before the Court and alleges that the summons stated to have been served upon him by registered post has never been tendered to him and that he did not decline to accept the packet containing the summons, the Court which passed the decree ex parte should as a rule set aside the decree ex parte and restore the suit to the file for hearing.

I am unable, to accept that contention. The legislature has recognised service of summons by registered post as one of the modes of service. Even though service of summons by post is now recognised, it is a poor substitute for personal service and is permitted as a matter of convenience. The normal rule followed by the Courts is to allow the defendant a retrial, if after a decree ex parte has been passed against him, on evidence that the summons was sent by registered post and returned with an endorsement of refusal, the defendant appears and denies that the packet was even tendered to him by the postal authorities.

In other words the order of retrial would be passed as a matter_of course and. without investi- gation into the truth or otherwise of the allegation made by the defendant. But this cannot be an invariable rule. If relying upon the regularity of the decree passed by a Court a third party has altered his pos

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