RAMACHANDRA IYER, C.J. :- This civil revision petition is filed by the plaintiff in O. S. No. 113 of 1947 on the file of the Sub-Court, Madurai, against an appellate order (original order having dismissed the application) setting aside an ex parte decree which was passed on 15th April 1958, for mesne profits. The application for setting aside the ex parte decree was filed nearly four months after the decree was passed on the ground that there was no proper service of summons on the defendant who consequently did not come to know of the decree till sometime before he filed the application. It was not disputed that the first summons was sent to the defendant by registered post and was returned with the endorsement that it was refused by the first defendant.

The postman who has been examined as a witness and whose evidence has been accepted by both the Courts below has stated that he tendered the registered cover containing the summons but that the latter declined to accept the same. No fresh summons was issued to the first defendant. The Court accepted the service as sufficient, set the first defendant ex parte and passed the decree The question now is whether mere tendering