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High Court Of Madhya Pradesh
Shiv Dayal, J.
Dhal Singh Kushal Singh
Versus
Anandrao Kakde
Civil Revn. 113 of 1960 Of
Decided On : Jul 09,1960
CIVIL PROCEDURE CODE - ORDER 9 RULE 13 - ORDER 5 RULE 20-A - LIMITATION ACT - ARTICLE 164 - SERVICE OF SUMMONS - INTERPRETATION - SETTING ASIDE EX PARTE DECREE - GROUNDS - IRREGULARITY IN SERVICE - DELAY IN SERVICE - CONDONATION OF DELAY - TERMS IMPOSED.
Fact of the Case:
Plaintiff instituted a suit against the defendant for the recovery of Rs. 3410/-. An ex parte decree was passed in favor of the plaintiff on September 20, 1957. On October 8, 1958, the defendant made an application under Order 9 Rule 13 of the Code of Civil Procedure alleging that the decree was obtained by fraud and without due service of any summons on him. The application was dismissed as barred by time. The defendant appealed to the District Judge, who allowed it and set aside the ex parte decree. The plaintiff filed a revision petition.
Finding of the Court:
The court held that the application under Order 9, Rule 13, was within time as the summons was not duly served on the defendant. The court also held that the defendant was entitled to have the ex parte decree set aside as there was an irregularity in the service of summons and the delay in service was condoned on the condition that the defendant deposits Rs. 100 as costs.
Issues: 1. Whether the application under Order 9 Rule 13 C. P. C. was within time? 2. Whether the defendant was entitled to have the ex parte decree set aside?
Ratio Decidendi: 1. The expression "duly served" in Article 164 of the Limitation Act must receive a strict interpretation and it means service of summons in compliance with the provisions laid down in the Code of Civil Procedure. 2. No order for substituted service can be made under Order 5 Rule 20 unless the Court is satisfied that the defendant is keeping out of the way for the purposes of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. 3. No order for service by registered post can be ordered unless a summons is returned unserved. Once the Court receives a summons unserved the Court may without examining the reasons for the non-service, order service by registered post. 4. Where a summons is not served on the defendant personally but is deemed to be served under any of the provisions of Order 5 e. g. where a summons sent by registered post is returned with the endorsement "refused or where a service is substituted under Rule 20, the defendant can succeed on showing either that the service was not in reality effected as reported, or that the condition pre-requisite for ordering that mode of service did not exist. 5. Where a summons is actually served on the defendant personally, e. g. where he in fact accepts summons sent to him by registered post, time will run from the date of the decree notwithstanding any irregularity in ordering that particular mode of service. 6. Where service is ordered and effected in accordance with the provisions of the Act, it does not matter, whether the defendant got actual knowledge of the suit or not. Substituted service is as good and effectual as personal service.
Final Decision: The revision petition was partly allowed. The ex parte decree was set aside on the condition that the defendant deposits Rs. 100 as costs.
( 1. ) DHAL Singh instituted a suit against Anand Ran Kakde for the recovery of Rs. 3410/-an the Court of the Civil Judge First Class Gwalior (Civil Suit No. 89 of 1956 ). On September 20, 1957 an ex parte decree was passed in favour of the plaintiff. On October 8, 1958 the defendant made an application under Order 9 Rule 13 of the Code of Civil Procedure alleging that the decree was obtained by fraud and without due service of any summons on him and that he camp to know of the decree on October 3, 1958, when in execution of the decree the Nazir came to his house for attachment of his properties. The application for setting aside the decree was resisted by the plaintiff. The defendant filed an affidavit and the plaintiff cross-examined him. In rebuttal the plaintiff produced Babukhan postman, who stated to have taken a registered envelope to the defendant and the defendant refused to accept it, whereupon he returned it with an endorsement to that effect. The learned trial Judge held that substituted service which was alleged to be effected was not due and proper, but he dismissed the application as barred by time. The defendant took an appeal to the District Judge, Gwalior, who allowed it and set aside the ex parte decree. This is plaintiffs revision from that order.
( 2. ) IT is contended by Shri Dube, learned counsel for the plaintiff, that the application under Order 9, Rule 13, was barred by time inasmuch as it was made beyond 30 days of the date of the decree. The argument is that the defendant must be deemed to have acquired knowledge of the suit when he refused to accept the envelope from the postman and it cannot be said that he was not duly served within the meaning of Article 164 of the Limitation Act and, even if there was any irregularity, it was inconsequential so far as the starting point of limitation is concerned. Counsel relies on the new Rule 20-A of Order 5, C. P. C.
( 3. ) TWO questions are involved in this case: whether the application for setting aside the ex parte decree was within time and whether any ground for setting aside the decree existed within the meaning of Order 9, Rule 13 C. P. C.
( 4. ) TWO dates are named in Article 164 of the Limitation Act as the starting points of limitation;
(1) The date of the decree. (2) Where the summons was not duly served, the date when the applicant had knowledge of the decree.
According to the plaintiff it is the first that applies while according to the defendant time must be taken to have started from the date of his knowledge of the decree, because no summons was duly served on him. The question arises as to when a summons is said to have been duly served for the purposes of Article 164. It is one of the first principles of Justice that a decree should not be passed behind the back of a defendant. It is based on the maxim aude alteram partem "hear the other side". But when he does not appear in spite of service of summons on him it is taken for granted that he has nothing to say against the claim, and if the Court is satisfied of the truth of the plaintiffs case an ex parte decree is passed against him. But it may also be that the summons is in reality not served on him and what purports to be service is in truth no service. If the summons is not duly served on him it is a ground for setting aside an ex parte decree. The expression "duly served" is not defined anywhere, yet it is clear from Section 27 C. P. C. that due service means service effected in the manner prescribed by the Code. It is true that the object of service of summons is to inform the defendant of the institution of the suit against him, but it does not follow that any knowledge of the institution will be deemed to be due service of summons even though no service is effected as prescribed by the Code. It seems to me that the word "duly" has been employed in the Article with great care and it necessarily refers to the provisions contained in the Civil Procedure Code relating to service of
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