Service effected by substituted service.

S. Nainar Sundaram, J.

1. The second defendant in C.S. No. 629 of 1979 on the file of the Original Side of this Court is the appellant in this appeal. The respondent is the plaintiff is the suit. The suit was laid by the plaintiff for specific performance of an agreement of sale. There are as many as eight defendants in the suit. The suit came to be laid on 27th November, 1979. Along with the suit, Application No. 4694 of 1979 was filed by the plaintiff for an order of injunction restraining alienations by the defendants, pending the suit. Interim injunction was granted on 6th December, 1979, in that application. The order of interim injunction was admittedly served on the second defendant on 12th January, 1980, along with the relevant papers. On 5th March, 1980, suit summons was affixed at the outer door of the premises in question and that is, old No. 23, new No. 9, Venkatesa Naicken Street, George Town, Madras, because, as per the evidence of the bailiff examined in this case as R.W. 1. attempts to serve personally on the second defendant on three different occasions proved futile since he could not be found. On 11th September, 1980, there was no appearance by the defendants and hence, the learned Judge sitting in the Original Side, made the order of interim injunction absolute. Since attempts to serve the defendants personally proved a futile process. Application No. 1324 of 1981 was taken out by the plaintiff for ordering substituted service and prayer (&) in the Judge's summons in the said application runs as follows : -

(b) why this Honourable Court should not be pleased to order substituted service for the defendants 1, 2 and 4 to 9, through publication, in one issue of Malai Murasu and affixture of summons on Court notice board of defendants 1,2 and 6 to 9.

2. This application was ordered and we find from the proceedings of the Assistant 'Registrar (Original Side) of this Court that affixture on the Court notice board was effected on 3rd April, 1981, publication was effected on 8th April, 1981; and affixture at the last known addresses of the defendants concerned was effected on 3rd April, 1981, 25th : May, 1981 and 8th June. 1981. By order, dated 28th July, 1981, made in Application No. 2451 of 1981, the service of suit summons effected by publication and affixture on the Court notice board for defendants 4 and 5 was held sufficient. Since the defendants took no steps to file their written statements, the matter was directed to be posted before Court. On the above basis, the suit was taken up and since there was no appearance by the defendants, an ex-parte decree ensued on 12th August, 1981.

3. The second defendant filed on 8th February, 1982, Application No. 441 of 1982 to set aside the ex-parte decree, dated 12th August, 1981. The material averments in the affidavit filed in support of this application runs as follows : Under an arbitration-partition arrangement, dated 16th September, 1974, the second defendant was one of the two persons who are liable to pay off the mortgage of the suit property; the second defendant approached Daya Sadhan on 12th January, 1982, asking them to tell him the amount due under the mortgage, so that he could pay off the, amount and discharge the mortgage and redeem/ the property; at that time, he was informed by Daya Sadhan that in the above a suit against the defendants, this Court had executed a sale deed in favour of the plaintiff in the suit and the sale deed had been registered as Document No. 4046 of 1981; since the second defendant had no notice of the suit, he requested his advocate to make a search in the office; it was then found that the suit had been decreed on 12th August, 1981; he was not aware of the passing of the decree in the suit; since no summons had been served on him, he had no knowledge about the above suit and he came to know about the decree having been passed only on 12th January, 1982. According to the second defendant, he had no knowledge about the decre