The Second Proviso to R.13 of O.9 of the Civil Procedure Code does not apply to a case where no summons had been served at all.

1. This appeal by the defendants in a suit in which an ex parte decree has been passed against them, has been filed against the judgement of the Court below rejecting the appellants application under O.9, R.13 of the Civil P.C. (hereinafter referred to as the Code) for setting aside the ex parte decree. The suit was filed by the plaintiffs-respondents for cancelling a sale deed executed by them in favour of the appellants on certain grounds. The suit was decreed ex parte on 14-4-1977 and an application by the appellants was filed on 12-5-77, that is, within the period of limitation. The appellants have alleged that they were not served with the summons in the suit and had no knowledge about the same till after the ex parte decree was passed. The Court has rejected their case.

2. Admittedly, the appellants are pardanashin ladies and according to the plaintiffs case, the serving peon served the summonses through a maid-servant. During the course of evidence, it became clear that the allegations regarding service through a maid-servant could not be established. The further evidence on behalf of the respondents that the defendants-appellants from behind a parda indicated that they would not accept the summonses, does not appear to be reliable and has been rightly disbelieved by the Court below. The evidence of service has been rejected by the Court below and the view taken appears to be correct. However, the Court assumed that in those circumstances there was merely an irregularity in the service of summons within the meaning of the Second Proviso to R.13 of O.9 of the Code and, consequently, the decree should not be set aside. The Court has assumed that the defendants had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.

3. Mr. Jugal Kishore Prasad, appearing for the appellants, has contended that in the facts and circumstances of the case, it has to be held that the summonses were not served at all on the appellants and further that in such a case the Second Proviso to R.13 has no application. Mr. Lakshman Sharan Sinha, appearing for the respondents, argued that the service of summonses in the case was valid inasmuch as the appellants are pardanashin ladies and the other conditions of R.17 of O.5 of the Code were satisfied. The said provisions are in the following terms :

"Procedure when defendant refused to accept service, or cannot be found where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

Relying upon the decisions in Mt. Najmunnisa V/s. Jagmohan Lal, AIR 1923 Pat 433 and Khiroda Sundari V/s. Nabin Chandra, AIR 1916 Cal 600, the learned counsel contended that R.17 applies to a case where a defendant being pardanashin lady is not able to accept service personally and has no agent empowered to accept notice on her behalf and has no adult member in her family on whom service may be effected. As provided by the rule, service can be effected by merely affixing a copy of th