Substituted service under Order 5, Rule 20 C. P. C. is not due service for the purposes of Article 164 Limitation Act if it does not give the defendant the knowledge of the claim made against him.

( 1 ) IN a suit filed by the petitioner for the recovery of the Rs. 385/- from the opponent, as the defendant could not be served personally, substituted service by the order of the court under Order 5, Rule 20, C. P. C. was made by publishing a notice in Nai Dunia, a daily Hindi paper published in Indore. The defendant did not appear in the suit in response to the notice. The suit was, therefore, decreed ex parte against him on 26-10-1956. On 12-1-1957, the defendant presented an application for setting aside the ex parta decree on the ground that the summons was not duly served on him and that ha got knowledge of the decree on or about 10-1-1957. The learned Civil Judge, Second Class, Mahidpur, accepted this plea of the defendant and set aside the ex parte decree against him. The plaintiff has now filed this revision petition against the order of the lower Court setting aside the ex parte decree.

( 2 ) MR. Kutumbale, learned Counsel for the petitioner, urged that the defendant was dully served for purposes of Article 164 of the Limitation Act, when substituted service was ordered by the Court under Order 5, Rule 20, C. P. C. and that therefore, the defendant should have filled an application for setting aside the ex parte decree within thirty days from the date of the decree and not from the date of the knowledge of the decree. Learned Counsel said that there was a conflict of decisions on the point as to whether the substituted service was due service for the purposes of Article 164, where as a matter of fact the defendant was ignorant of the suit. He referred to the decisions noted in Note 5 to Article 164 in Chitale's limitation Act (Vol. 3 ).

( 3 ) THE question that arises for consideration in this revision petition is whether it is open to the defendant seeking to set aside a decree passed ex parts against him to show that substituted service in the suit against him was not due service. To me it appears that the answer to the question is clear from the terms of Article 164 of the Limitation Act itself. Under that Article limitation for setting aside an ex parte decree is thirty days from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. When, therefore, the defendant files an application more than thirty days after the date of the decree saying that he got the knowledge of the decree on a particular date, he has to establish first that the summons was not duly served on him and secondly that the application made by him for setting aside the ex parte decree is within, thirty days of the date on which he got the knowledge o the decree. It is thus open to him to show, am he must, that the summons which was said to be served on him was not in fact duly served on him. The phrase 'duly served' in Article 164 is used in the same sense as in Order 5, rule 19 and 20, C. P. C. Here the rule that is relevant is Rule 20 of Order 5, c. P. C. , which deals with substituted service. Under Order 5, Rule 20 (1), substituted service can be ordered only where the court is satisfied that the defendant is keeping out of the way, or that for any other reason the summons cannot be served in the ordinary way. The substituted service has to be effected by affixing a copy of the summons in some conspicuous place in the court house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Thus, a defendant can be said to be duly served by substituted service only if there is compliance with Order 5, Rule 20 (1), C. P. C. It follows, therefore, that where a defendant contends that thesubstituted service on him was not a due service he is entitled to show that it was neither properly ordered nor properly effected. In other words, he can show that he was not keeping out of the way or that he could be served in the ordinary way