The second proviso to Order IX Rule 13 CPC, as added in Uttar Pradesh, restricts the absolute right of a defendant to have an ex-parte decree set aside in cases of irregular service of summons. If the defendant knew or, but for his wilful conduct, would have known of the date of hearing in sufficient time to appear and answer the plaintiff's claim, the ex-parte decree cannot be set aside merely on the ground of irregularity in service of summons.

H.N. Seth, J.

This First Appeal From Order by Defendants Raja Ram Gupta is directed against the order passed by the Civil Judge Gorakhpur on 16th August 1975 rejecting Appellant's request for setting aside an ex-parte decree passed against him on 5th March 1974.

2. On 3rd April 1974 Appellant Raja Ram Gupta who was one of the Defendants in Suit No. 113 of 1973 of the court of Civil Judge, Gorakhpur made an application under Order IX Rule 13 CPC praying that the ex-parte decree dated 5th March 1974 passed against him be set aside, in the affidavit filed in support of the application, he stated that summons had been served on the Defendants by publication in a news paper Sanmarg which had no circulation in the village areas of the district of Varanasi and Jaunpur as also in village Thatra where the Defendant resided. The Defendants therefore, had no knowledge of the proceedings in the suit and of the ex-parte decree passed on 5th March 1974. It was only when on 2nd April 1974 the Appellant went to the shop of the Plaintiff at Golgarh Gorakhpur that he came, to know about the ex-parte decree and ' thereafter he immediately filed the application under Order IX Rule 13 of the Code of Civil Procedure.

3. The prayer made by the Appellant was opposed by the Plaintiff-decree holder who related the assertion that the Defendants were no aware of the proceedings. The decree holder further asserted that on an application hied by him, the Court had made an order attaching before judgment various movable and immovable properties of the Defendants. In pursuance of that order the Vakil Commissioner appointed by the Court carried out the attachment of mills, machinery and raw material, belonging to the Defendant at Thatra. At that time Appellant Raja Ram Gupta and Defendant Ram Kripal another partner of Defendant No. 1 were also present at the shop, it could therefore not be said that the Defendants had no knowledge of the proceedings. Publication of summons was made in the newspaper Sanmarg, which had very wide circulation not only in the city of Varanasi but all round in the district of Varanasi and interior villages of Varanasi and Jaunpur,

4. Raja Ram Gupta field an additional affidavit on 15-8-1975 wherein he denied that either he or Ram Gopal was present at the time when the Vakil Commissioner visited Thatra and carried out the attachment before judgment and that the report made by him mentioning their presence was incorrect.

5. The trial court observed that the version contained in the affidavit filed by the Plaintiff was fully supported by the Commissioner's report on the record and appeared to be probable, specially when a Superdar had been appointed to take charge of the attached properties. It therefore did not believe the statement of the Defendants that they came to know of the proceedings for the first time on 2nd April 1974 and made the impugned order dismissing the application for setting aside of the ex parte decree.

6. A perusal of the order passed by the trial court shows that it dismissed the application filed by the Appellant on the finding that the Appellant was aware of the suit and that despite this knowledge he did not care to put in appearance and to defend the suit. It did not express any opinion on the controversy between the parties in regard to service of summons on the Defendants by publication in the newspaper Sanmarg.

7. Order IX Rule 13 as applicable in this State, as it stood at the relevant time ran thus:

In any case in which a decree is passed ex parte against a Defendant, he may apply to the court by which the decree was pessed for an order to set it aside if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for nearing the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it tninks fit and shall appoint a day for proceeding