The main legal point established in the judgment is the interpretation of service by affixture as due service in the absence of the defendant, based on the circumstances of the case and previous decisions.

Sadasiva Aiyar, J.

1. The first defendant is the petitioner in revision. An ex parte decree was obtained by the plaintiff against the petitioner for specific performance of an unregistered written agreement by which the defendants agreed to execute a registered rent deed in favour of the plaintiff. This ex parte decree was passed on the 16th August 1910. The first defendant was not personally served with the defendants summons in the suit. His permanent residence was Bezwada and the suit was brought in the Bezwada Munsifs Court. When the process server went to serve him with the summons on 2nd July 1910, 1st defendants gumastah said that the 1st defendant had gone to Tirupathi and so the duplicate summons was affixed to the outer door of his house. The process-server was solemmly affirmed on the 5th July 1910 and deposed to the truth of his return to the above effect. The District Munsif treated the service by affixture as service duly made and after examining one witness for the plaintiff who proved that the unregistered agreement was executed by the 1st defendant gave a decree against the 1st defendant (decree was also passed against the other executant of the agreement, the 2nd defendant, but we are not concerned now with that matter).

2. When the suit for the specific performance, (O. Section 360 of 1910) was brought, the law in Madras seems to have been that an unregistered agreement to execute a rent-deed could be used and was admissible as evidence in a suit for specific performance of that agreement. See Srinivasacharlu v. Venkatarazu (1907) 17 M.L.J. 218. The fact that in February 1910, Benson and Krishnasami Aiyar, JJ. had doubted the correctness of that decision and had referred the matter to the Full Bench See Narayan Chetty v. Muthia Servai (1910) 21 M.L.J. 44. S.C. I.L.R. 35 M. 63 was probably not known in the mofussil then. The District Munsif therefore on 16th August 1910 treated the unregistered agreement on which the suit 360 of 1910 was brought in his court for specific performance as admissible in evidence and passed his ex parte decree on that date. On the 23rd August 1910, the 1st defendant put in a petition to the District Munsif to set aside the ex parte decree on the ground that he had gone on a pilgrimage to Benares in May 1910, that he returned to Bezwada only about the 13th August 1910, that he did not then know of the suit having been brought against him, that the ex parte decree of 16th August 1910 which was passed about 3 days after he returned to Bezwada came to his knowledge only on the 22nd August 1910 and on these grounds he applied to set aside the ex parte decree. This petition was dismissed by the learned District Munsif on the ground that the 1st defendant must have been informed by his clerk of the affixing of the summons in July to the outer door of the 1st defendants house, that the District Munsif did not believe the allegation in the first defendants affidavit (that the 1st defendant had gone to Benares) because the endorsement on the summons shewed that he had gone only to Tirupati and that the 1st defendant had signed " the suit agreement". On appeal, the learned District Judge confirmed the order of the District Munsif refusing to set aside the ex parte decree. The learned District Judges reasons are that the 1st defendant who was absent when the process-server took the summons for service to his house was not temporarily absent but was absent for an indefinite period and that the service by affixture was correctly effected in such a case and could be treated as due service. It was argued in this C.R.P. 558 before me that the endorsement of the process server itself shows that the 1st defendant was not duly served, (see the 2nd ground of the petition) and that " the Court below failed to see that the plaintiffs suit was not maintainable on the face of it as no suit could be brought on the basis of an unregistered agreement to lease. [Vide Full Bench decision in Narayana Chet