Aftab Alam, J.

1. This appeal arises from an order dated 10-12- 1990 passed by Subordinate Judge VI, Patna in Misc. Case No.11/1987. By the order under appeal, the learned Subordinate Judge rejected a petition filed by the appellant under Order IX, Rule 13 of the Code of civil Procedure and refused to set aside the ex pane decree, dated 20-9-1986 passed against the appellant in Money suit No.234-1973/73-1985.

2. It appears that the State of Bihar had placed a purchase order on the appellant, m/s. Hooghly Marine and Engineering company for the supply of certain electrical equipments. The supply of the goods under the purchase order gave rise to some dispute between the parties and led to the filing of two suits. The first suit was filed by the appellant in the court of Munsif, Chandernagore where it was registered as M. S. No.1/1970. In this suit the appellant-plaintiff claimed payment of the dues amounting to 10% of the price of the goods supplied in terms of the purchase order. Another suit (with which we are concerned in this appeal) was filed by the State of Bihar on 1-10-1977 in the court of Sub-Judge. I, Patna where it was registered as M. S. No.243/1977. In this suit, the State of Bihar claimed recovery of Rs.36,628.20 (along with interest @ 6%) already paid to the appellant-defendant on the allegation that the goods supplied by it were not in conformity with their description and specifications given in the purchase order and were wholly useless.

3. On 5-9-1979 the State of Bihar, the defendant in M. S. No.1/1970 in the chandernagore court filed a petition praying for an adjournment. In this petition a reference was made to M. S. No.234/1977, filed by the State of Bihar in the Patna Court and it was stated in that regard that both the suits arose substantially from the same set of facts and circumstances. It was further stated in this petition that the State of Bihar had accordingly filed a petition in the supreme Court on 2-2-1979 praying for the transfer of the Chandernagore suit to Patna where it could be tried alongwith M. S. . No.234/1973. The Munsif, chandernagore, granted the adjournment as prayed for and passed the following order on 5-2-79 :

"ld. Lawyer for pltf. files Hazri. Defendant No.1 files a petition stating that he has filed an application before Hon ble Supreme court for transferring this suit in the court of ist Sub- Judge, Patna for analogous trial of the same with M. S.234 of 1977 of that court and also a petition for stay and as such pray for 2 months time for bringing stay order. Defdt. No.1 also files some documents as per firstly in support of his petition. Copy served. Heard. Considered. Prayer is allowed for ends of justice.23-3-79 for stay P hearing. No costs. Defdt N.1 to bring stay order in the mean time. "

Apparently the State of Bihar was unsuccessful in obtaining an order from the Supreme Court transferring the chandernagore case to Patna and the two suits before the two courts proceeded independently.

4. In the Patna suit, summons were sent only once to the appellant defendant under registered cover. By order dated 12-8-1981 passed in the suit, it appears that the registered notice returned unserved whereupon the court directed the plaintiff to take steps for substituted service of notice by its publication in a daily newspaper published from Hooghly and directed it to deposit the cost of publication by 17-11-81. On 4-5-82 the suit was dismissed for default in making the deposit of the publication cost. For the restoration of the suit, the State filed a petition under Order IX, Rule 4 of the c. P. C. on 22-5-82 which was numbered as Misc. Case No.31 of 1982. The suit was finally restored by order dated 22-10-83 without issuing any notice to the defendant. Finally, the notice was published in the Statesmen of 20-2-1986. This notice suffered from some minor error, namely, though the name of the company was correctly printed, the name of its Managing Director through which it was r