Service of notice cannot be said to be due service.

The Defendants in the suit are the appellants in C.M.A. No. 187 of 1972. and the petitioners in C.R.P. No. 1055 of 1972. The suit was filed against the defendants for recovery of a sum of Rs.11,471-56 P. on two heads, i.e., one on a pro-note and another on dealings. On 27th February, 1971, an ex parte decree had been passed. On 3rd September, 1971, the defendants were served with notice in the execution petition. After coming to know of the Execution Petition, the defendants on 4th September, 1971 filed two Interlocutory Applications (1) I.A. No. 1909 of 1971 for the purpose of excusing the delay in filing the application for setting aside the ex parte decree ; and (2) I.A. No. 1910 of 1971 for setting aside the ex parte decree, dated 27th February, 1971. The trial Court dismissed both these applications. The defendants have filed C. M. A. No. 187 of 1972 against the decision in I.A. No. 1910 of 1971, and C. R. P. No. 1055 of 1972 against the decision in I.A. No. 1969 of 1971.

2. Mr. Narayanaswami, the learned Counsel for the appellants and the petitioners respectively in the abovesaid cases submitted that as per Article 123 of the Limitation Act, the time to file the petition to set aside the ex parte decree will run only from the date of knowledge of the decree. He is also aware that if the summons have been duly served, the time will run from the date of the decree. Hence, Mr. Narayanaswami has submitted that the summons were not duly served inasmuch as the plaint copy was not attached to the summons. He cited the decision in Gyanammal v. Abdul Hussain Sahib1. In that decision, a Bench of our High Court dealing with the service of summons duly upon the defendant has observed that the defendant can dispute the due service on the ground that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. It is further stated in the said decision that even if the defendant is served personally, it is open to him to come to the Court and show that was not really due service because it did not really give him knowledge of the claim against him.

3. As far as the present case is concerned, the defendants have specifically raised the plea stating that they were not served with a copy of the plaint. The lower Court has failed to consider this point except stating that the defendants had knowledge of the suit. Mere knowledge of the suit is not enough to disentitle the defendants from filing a petition to set aside the ex parte decree beyond a period of thirty days from the date of the decree. The essential requirement is that the defendants must be aware of the date of the decree if the summons were not duly served upon them. No doubt, Mr. Narayanaswami, has further contended that due to the fraud practised by the plaintiff, they did not take serious note of the alleged suit. This, he states, on the ground that the defendants thought that a suit has been filed only on a promissory note inasmuch as Exhibit B-3 the suit notice, dated 23rd October, 1969 mentions only the money, due on the pro-note ; but unfortunately the suit is not only based upon the promissory note but also on certain dealings. This, according to the defendants, is not a bona fide claim. But I do not think that that point has any relevancy for the present case and it is unnecessary for me to deal with the same since that will not form a ground for setting aside the ex parte decree.

4. In the decision in Pichai Ammal v. Vellayya2 , in paragraph 9 it is held:

"Article 164 of the Limitation Act, provides for a period of thirty days for an application to set aside an