JUDGMENT

Radha Krishna, J - This is the defendants' application in revision. The facts are that the opposite parties obtained a preliminary decree for foreclosure against the defendants on 30th September 1933. After the expiry of the time allowed in the preliminary decree the plaintiffs decree-holders applied for the final decree for foreclosure under Order 34, Rule 3, Civil P.C., At the hearing of the application defendants 13 and 14 alone appeared and the rest being absent, trial was ordered ex parte against them. Defendants 1 to 5, who are the applicants in this Court, could not be served and so substituted service under Order 5, Rule 20, Civil P.C., was effected against them. On 9th November 1935, a final decree for foreclosure against all the defendants, including the present applicants was passed.

2. Defendants 1 and 2 applied in the Court of the learned Munsif on 4th December 1935, for reduction of interest and grant of instalments under Sections 4, 5 and 30, U.P. Agriculturists' Relief Act, but the application was dismissed on 15th January 1936, on the ground that the application was not maintainable as a final decree for foreclosure had already been passed. Defendants 1 to 5, i.e., the petitioners then pub in an application under Order 9, Rule 13, Civil P.C., for setting aside the final decree for foreclosure in the Court of the Munsif of Fyzabad which had passed the decree. It is to be noted that the only allegations in the application were that the notices had not been served upon the applicants personally and that they had acquired knowledge of an ex parte decree having been passed against them on 15th January 1936. The learned Munsif disbelieved the statement of defendant 1, who was produced as a witness, and held that the applicants-defendants had knowledge of the decree and their application for setting it aside was barred by limitation as it had been made more than 30 days after the decree. The learned Munsif further held that substituted service had properly been ordered and effected. In the result he dismissed the application.

3. The defendants-applicants appealed. The learned Civil Judge, with reference to Article 164, held that it was not open to him to question the validity or the legality of substituted service under Order 5. Rule 20, and he was bound to take the service as having been duly effected and in that view the application having been made more than 30 days after the date of the decree was barred by time. The defendants-applicants have come up in revision to this Court against the order of the learned Civil Judge in appeal. In view of the fact that the petitioners in their application had not raised a contention to the effect that substituted service was improperly ordered, the learned Counsel for the opposite party has urged that they should not have been allowed to raise the plea. As the point was fully discussed before the trial Court and some evidence was allowed to be led on the point, I am not prepared to entertain the objection at this late stage. Order 9, Rule 13, Civil P.C., runs as follows:

13. 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 passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that (in Oudh add 'not withstanding due service of the summons') he was prevented by any sufficient cause from appearing when the suit was called on for hearing, 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 thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

4. A Further proviso has been added to this by the Oudh Chief Court and it is as follows:

Provided also that no ex parte decree shall