Mere non-service of summons is not sufficient to invalidate a decree on the ground of fraud. The plaintiff must show that the summons was fraudulently suppressed and that he was kept ignorant of the decree due to the defendant's fraud.

JUDGMENT :- This second appeal arises out of a suit filed by plaintiff-respondent for cancellation of a decree passed by the Revenue Court on the ground that the said decree was obtained by the defendant-appellant under fraud which prevented the plaintiff-respondent from coming to know of that decree. The suit was dismissed by the trial Court but decreed by the lower appellate court. Hence this second appeal.

2. The relevant facts were that the appellant filed a suit under Section 59 of the U. P. Tenancy Act in the Revenue Court against the appellant for a declaration that he had acquired hereditary tenancy rights in a plot under Section 180 (2) of the said Act. Summons of that suit was issued to the respondent but the same could not be served on him personally. The appellant then applied that substituted service may be effected on him under Order V, Rule 20, Civil Procedure Code. The Revenue Court allowed that application and directed that service shall be effected by beat of drum in the locality in which the respondent resided and also by affixation of the summons at some conspicuous place in the Court. It was done accordingly. Even after that the respondent did not put in appearance on the date fixed and the suit was decreed ex parte in 1953. In the year 1956 the respondent filed the suit out of which this appeal has arisen alleging that he was prevented from having any information of that suit due to the fraud of the appellant and for that reason he could not contest that suit. He, therefore, wanted that the said decree may be cancelled.

3. The only point that was urged in this appeal by the learned counsel for the appellant was that the mere fact that the respondent did not know about the suit as the summons was not duly served on him would not be a sufficient ground to invalidate that decree on the ground of fraud unless it is also proved that the information of the suit was suppressed from the respondent due to the fraud of the appellant. In support of this contention he places reliance on a decision of the Calcutta High Court in Abbasali Bhuiya v. Ram Kanai, AIR 1935 Cal 95 in which it was held that in a suit instituted under Article 95 to set aside a decree obtained by fraud or for relief on the ground of fraud, the plaintiff must show that the summons was fraudulently suppressed and by fraud of the defendant he was kept ignorant of the decree and mere non-service of summons is not sufficient. The lower appellate Court has not up-set the finding of the trial court that on 9-4-1953 the service of summons was effected by beat of drum in the locality and by affixation of the summons at some conspicuous place in the court compound in compliance with an order passed by the court under Order V, Rule 20, Civil Procedure Code what it has observed is that the appellant was not justified in moving an application for substituted service under Order V, Rule 20, Civil Procedure Code on which this order was passed by the trial court simply because before that only one attempt was made to serve the summons personally on the respondent which was returned by the process server with his report dated 12-11-1952 vide Ex. A-3. There is no requirement of law that an order under Order V, Rule 20, Civil Procedure Code could be passed by a court only after more than one unsuccessful attempt had been made to serve the summons personally on the defendant. All that this rule requires is that the court may order substituted service when it is satisfied that there is reason to believe that the defendant is

keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. On behalf of the appellant it is contended that it is also not factually correct that prior to this order of substituted service only one attempt was made to effect personal service on the defendant. He points out that prior to November, 1952 one more fruitless attempt was made in that direction and anot