Petition to set aside ex-parte decree allowed.

The appellant is the second defendant in O.S.No.184 of 1982 on the file of learned Subordinate Judge of Villupuram. On 10. 1982 the suit was decreed exparte against him. Thereupon he came forward with I.A.No.469 of 1987 under 0.9, Rule 13, C.P.C. to set aside the exparte decree against him on the allegation that he was not served with any summons in the suit. He came to knowof thesuit for the first time only on 11,7.1987 when the notice of the execution was received. His claim was contested by the plaintiff on the ground that there was service of summons by affixture and this plea is set out by the appellant only in order to avoid giving proper explanation for his nonappearance. The court below has negatived the contention of the appellant and dismissed his application with cost. And this appeal is directed against the said order.

2. Learned counsel for the appellant submitted that he was not served with summons in the case and he became aware of the decree only when notice in execution proceedings was received by him and that the court below instead of addressing itself to the question whether there was sufficient cause for his non-appearance when the suit was called on 10. 1982 for hearing, has dealt with the merits of the case which is totally irrelevant for the purpose of the application. We are now concerned only with the question whether there was due service of summons on the appellant for the hearing dated 10. 1982. The notes paper in the suit is not available since it is stated to have been destroyed. It does not appear from the available records that there was any personal service of summons on the appellant. The court below also proceeds on the basis that there was only service by affixture. In this connection, learned counsel for the appellant points out that in the plaint the address of the second defendant/appellant is given as No.17, V.O.C. Street, Villupuram, whereas in the copy of the summons he is stated to be residing at No.24, V.O.C. Street, Villupuram and the specific endorsement of the bailiff is that he enquired the whereabouts of the appellant on 19. 1982 in the address mentioned in the summons which is 24, V.O.C. Street, Villupuram and learnt that he had gone out and it is not known when he would return. So, he affixed the summons on the outer door of the above mentioned house. This would indicate that the bailiff has not searched for the appellant in the address where he was stated to be residing as per the plaint averments and instead he made enquiries in some other door number and the affixture was also made therein.

.3. O.5, Rule 17 states that where the serving officer after due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service 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 there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides, and shall then return the original to the Court with a report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. It is evident that in this case the bailiff has not affixed the summons where the defendant ordinarily resides as per the plaint.

4. Further, under O.5, Rule 12, C.P.C. wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. And, 0.5, Rule 15 stipulates 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