Validity of substituted service and starting point of limitation for setting aside an ex parte decree.

( 1 ) THIS revision has been filed by the plaintiff who had sued the defendant in Civil suit No. 451 of 1960. The defendant was served for appearance on 14-1-1961. That date was declared a holiday. The next date of hearing was 20-2-1961. The court on that day thought that the previous service would not be sufficient and therefore issued a summons which was affixed on the residence of the defendant. In spite of this the defendant did not appear and the Court holding the substituted service to be good passed an ex parte decree against the defendant. After obtaining the decree, the decree-holder started execution proceedings and Nazir went to the residence of the defendant for attachment. Thfs happened on. 12-81961. The defendant thereupon made an application on 23-8-1961 for setting aside the ex parte decree.

( 2 ) THE small cause court found that the defendant was not duly served and that he came to know of the decree only when Nazir went there for attachment on 12-81961. The claim was therefore within time. The plaintiff has now come up in revision against the order setting aside the ex parte decree.

( 3 ) THE court found that the substituted service that was effected on the defendant was not properly done. This position has not been challenged. Therefore I need not discuss the question whether a valid substituted service is a good service within the meaning of Article 164 of the Limitation. Act when as a matter of fact the service has been found to have been effected illegally.

( 4 ) THE next question however raised is of some importance. The applicant contends that the defendant was served earlier i. e. for appearance on 14-1-1961. Therefore the limitation would start from that date. He contends that the order to have another substituted service was not necessary. Therefore whether the substituted service was bad or not is not material. According to him, once the summons is served the limitation would start from that date.

( 5 ) I find from the application which the non-applicant had that in which he admits that he was served on 14-1-61. (Sic) I also perused the summons and the endorsement on. it about the service. But in my view the service of summons which was effected for appearance on 14-1-1961 cannot be held to be a good service under Section 164 of the Limitation Act for reasons that follow.

( 6 ) THE Civil Procedure Code nowhere defines what a summons is. But the date in the summons given for appearance by the defendant is an essential ingredisnt of summons. Therefore there cannot be any doubt that the date is essential element of summons. Section 27, C. P. C. says that when a suit has been duly instituted, a. summons may be issued to the defendant to appear and answer the claim and may be served in a manner prescribed. The manner prescribed is in Order 5. Order 5 Rule 1, reads as follows: "when a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified. "

( 7 ) IT is clear that the summons must mention the day when he should appear. But if the summons mentions a wrong date for appearance or appearance on a date when the Court is closed it ceases to be a summons as required under Order 5, rule 1. There is no rule of law or of procedure that if a summons is issued for appearance on a day which happens to be a holiday, the party summoned should appear on the next following day. There was therefore no obligation on his part to appear on the next date. Moreover I find from the record of Civil Original Suit No. 451 of 1960 that the case was not taken up on the next date but was taken on 161-1961. The summons issued to the defendant did not indisate that he should appear continuously for 14-1-1961.

( 8 ) ARTICLE 164, Limitation Act says that the limitation would start from the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. From the facts stated above it is clear that the d