The presumption under Rule 5, Order 3, CPC, that service of summons on a pleader is deemed to be service on the client is rebuttable.

BINDRA, J. :- This appeal by Pulin Das Kakati is directed against the order dated 12-9-1968 by which his application under Order 9, Rule 13, Civil P.C. for setting aside the ex parte final decree, dated 21-3-1966, was rejected with costs by the Assistant District Judge No.2, Gauhati.

2. In a suit for rendition of accounts filed by Rajendra Nath Hazarika, the respondent herein, against Pulin Das Kakati a preliminary decree was passed and a commission issued for looking into the accounts and making a report to the Court. Before the Commissioner could submit his report, Pulin Das Kakati, who was then an employee in the army in the rank of Major, it appears, moved his Commanding Officer for requesting the Court to stay the proceedings in the terms of the Indian Soldiers (Litigation) Act, 1925, hereinafter called the Act. The Commanding Officer addressed a letter to the Court requesting for stay of the proceedings and the proceedings were stayed by the Court until 30th April 1965 by its order dated 23-1-1965. Rajendra Nath Hazarika having felt aggrieved with that order filed a revision petition in the High Court to challenge its validity. However, his revision petition was rejected by the High Court on 26-11-1965. The case was placed before the trial Court thereafter on 13-12-1965 when the Court directed that it should come up before it on 29-1-1966 "in presence of the learned Advocates of both the parties for orders. Inform". None of the Advocates having put in appearance before the Court on 29-1-1966, the Court adjourned the case to 11th February, 1966, for being put up before it "in presence of lawyers of both parties for orders. Inform". On the latter date it was reported to the Court that the plaintiffs Advocate had not been informed and so necessary direction in that respect was issued by the Court while adjourning it to 21st March, 1966. It is on that date that the suit was decreed in the presence of the plaintiffs Advocate after going through the Commissioners report which had been received in the meantime.

3. It was on the 14th March, 1968, that Pulin Das Kakati presented an application under Order 9, Rule 13 of the Code praying for setting aside the ex parte final decree dated 21-3-1966. The allegations made in support of that prayer were that the summons issued to him by the Court had been suppressed, that he had never learnt that the proceedings had been started by the Court after having once stayed them, and that he had learnt about the final decree on 13th March, 1968, from one Haladhar Choudhury. It was stated further that the petitioner being employed in Military was posted outside Gauhati and so could get no knowledge of the fraud played on him by Rajendra Nath Hazarika in the matter of securing the final decree at his back.

4. Rajendra Nath Hazarika opposed the prayer made for setting aside the decree. His defence was that the petition dated 14-3-1968 of Pulin Das was barred by time, that it was not maintainable under Order 9, Rule 13, Civil P.C. and that Pulin Das Kakati having put in appearance before the Commissioner through his Advocate Shri S.N. Medhi, it was wrong on his part to allege that he had no knowledge of the proceedings or of the final decree.

5. The learned Assistant District Judge held in the impugned order that the application made by Pulin Das Kakati was barred by time and that Pulin Das Kakati had also failed to show sufficient cause for non-appearance in the case. In the opinion of the Assistant District Judge, Pulian Das Kakati "had knowledge of the Commission and the final decree long before he filed the petition Under Order 9 Rule 13, Civil P.C. dated 21st March, 1968".

6. Shri K. Mazumder, who represented the appellant, submitted that after the proceedings had been stayed by the Court on 23-1-1965 under the provisions of the Act, Pulin Das had not received any notice from the Court in connection with the revival of the proceedings, that Pulin Das learnt about the final decree only on 1