Validity of the order imposing conditions.

Shanmukham, J.

1. The defendant in O.S. No. 76 of 1983 on the file of the Sub Court, Nilgiris, is aggrieved against the Order of dismissal of his application, I.A. No. 110 of 1984 filed under Order 9, Rule 13,0f the Code of Civil Procedure.

2.Mr.Palpandian, Learned Counsel for the appellant submitted that in this case, there is no service on the appellant herein within the meaning of Order 5, Rule 19A and therefore, the Court shall make an Order setting aside the decree as against him. The Learned Counsel would emphasize on the word 'shall' employed in Order 9, Rule 13. The Court below held that ,as under Ex. B1, Ex. R4 notice was acknowledged by the appellant's wife and as the appellant did not examine his wife, there was valid service within the meaning of Order 5, Rule 15.

3. The question that falls for determination therefore is whether on the facts in this case Order 5, Rule 15 or Order 5, Rule 19A is attracted. It may be useful to refer to certain dates at this juncture. The defendant was set ex-parte as early as 8th April, 1983 and ex parte decree came to be passed on 30th August, 1983. Order 5, Rule 15 provides:

Where in any suit the defendant is absent from his residence at the time when the service of summons 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 he has no agent empowered to accept such service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.

It is also important to notice the heading under which the sub-rule is placed. It is under the caption 'service of summons'. Rule 19A is put under the heading 'Simultaneous issue of summons for service by post in addition to personal service'. Rule 19A states:

19A. (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due addressed to the defendant, or his agent empowered to accept the service at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain; Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2) When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal articles containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant : Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons.

According to Rule 15, the service is a personal service, while under Rule 19A, it is an additional service sent by post. While in Rule 15, a service on agent empowered to accept the service of summons on appellant's behalf or on any adult member of the family whether male or female will be treated as good service, according to Rule 19A unless the summons sent by registered post is acknowledged by an agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain, there will be no service of summons on the defendant. In this case, it is true that the summons