The court can set aside an ex parte decree under Order 37 Rule 4 CPC if there are special circumstances, such as non-service of summons.

( 1 ) THIS application has been filed on behali of the defendant under order 37 Civil Procedure Code for setting aside the ex parte decree passed in the suit on 17. 5. 1990 against the defendants. It is alleged in the application that on 10. 7. 1991 the applicant came to know through a friend of the applicant that an ex parte money decree has been passed in favour of the plaintiff and against the defendant. The applicant engaged an advocate who inspected the record on behalf of the. defendants. It revealed that the suit had been decided ex parte on 17. 5. 1990 holding the substituted service by publication in the daily Newspaper national Herald on 29. 1. 1990 to be sufficient. It is further alleged that neither the applicant nor any of the Directors or officers of the defendant company bad knowledge of the suit filed by the plaintiff. National Herald has no wide circulation in the city of Lucknow, and as such the applicant never came across the publication in the said Newspaper.

( 2 ) IT is further alleged that the applicant did not receive any notice in the aforesaid suit. Since the service had been effected only by publication, the ex parte decree is liable to be sat aside. It is also alleged that the suit is not based on a Bill of Exchange.

( 3 ) THE plaintiff was afforded opportunity to file reply to this application which they did. The plea reised on behalf of the plaintiff is that the application is not maintainable under the provisions of the Code of Civil Procedure as no leave was obtained by the defendant and no sufficient cause has been shown by the defendant for their being prevented from appearing in time and getting leave to defend. It is clear from the Court record that the applicant had the knowledge about the filing of the suit but they had deliberately, on one pretext or the other, been avoiding the service. The applicant were duly served by substituted mode. It was denied that National Herald had no wide publication in the City of Lucknow and that the applicants never came across the publication in the Newspaper.

( 4 ) IN order to appreciate the respective contentions of the partics, it is necessary to narrate certain facts which are relevant for the disposal of this application.

( 5 ) THE plaintiff filed a suit against the defendant for recovery of Rs. 2,94,260. 00 under the provisions of Order 37 CPC. Several attempts were made to serve the defendants in the suit but the defendants remained unserved. The plaintiff moved anapplication (being I. A. No. 9106/1989) under Order 5 Rule 20 Civil Procedure Code with the prayer that the service on the defendants be effected in a substituted manner. The application was made on the allegations that the summons were issued by ordinary process as well as by registered A. D. post, a number of times, but neither the registered A. D. envelops containing the summons issued by this Court were received back undelivered nor the acknowledgement due cards had been received. It was further alleged that the defendants were keeping out of the way for the purpose of avoiding service and the summons could not be served in the ordinary way. The application came up for orders before the Deputy Registrar on 11. 12. 1989. On perusal of the previous reports as well as the contents of the application, the Deputy Registrar was satisfied that the defendants could not be served in the ordinary way. It was ordered that the service on the defendants be effected by affixation on the last known address of the defendants as well as on the notice board of this Court. Summons were also directed to be published in the daily national Herald . In pursuance to the directions given by. the Deputy Registrar, summons were issued for affixation and also for the publication in the Newspaper. The notice was published in the national Herald dated 29,1. 1990. Despite service, by publication in the national Herald of 29. 1. 1990, the defendants did not enter appearance. Accordingly, the suit