The respondent instituted O.S.No. 302 of 1946 in the Court of the District Munsiff, Namakkal, for recovery of possession of certain properties and for mesne profits, and the same was decreed ex parte on 16th September, 1946.

The defendant then applied in I.A.No. 835 of 1946 to set aside the decree passed ex parte on the ground that the summons was not duly served on him. The facts as found by the Courts below are that the summons was tendered to the defendant on 14th September, 1946, and that he refused to sign the acknowledgment. The contention of the petitioner is that the process-server must either take an acknowledgment from the defendant or affix the summons to the outer door of the house and that as neither was done, there was no due service of summons as required by Order 5, rule 17 and that, therefore, the Court was bound to set aside the ex parte decree under Order 9, rule 13. The Courts below met this contention by reference to the proviso to Order 9, rule 13, enacted in Madras. The proviso runs thus:

“Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it be