K PUGAL Vs. P ASOKA

JUDGEMENT

(1.) THIS civil revision petitioner in all these petitions is the first defendant in the suit. An ex parte preliminary decree was passed against him on 20th December, 1974. He filed a petition I. A. No. 703 of 1976 under section 151, Civil Procedure Code, to vacate the ex parte preliminary decree and the order passed is the subject-matter of C.R.P. No. 1702 of 1980. The petitioner filed I. A. No. 704 of 1976 under section 151, Civil Procedure Code, for setting aside the ex parte order passed in final decree proceedings and the order passed against him is the subject-matter of C. R. P. No. 1703 of 1980. The petitioner filed a third application I. A. No. 72 of 1976 for setting aside the ex parte Order passed against him in the application for appointment of a Commissioner and the order passed against him is the subject-matter of C. R. P. No. 1704 of 1980. All these three civil revision petitions are heard together and disposed of by a common order.

(2.) THE petitioner appearing in person argued his case with commendable skill and ability and contended that as the suit summons were not accompanied by a copy of the plaint there is no-compliance of the mandatory provisions of Order 5, rule 2, Civil Procedure Code, and as the preliminary decree passed is therefore, a nullity and without jurisdiction it is unnecessary for the petitioners to file a petition under Order 9, rule 13, Civil Procedure Code, to set aside such a decree and the application has been filed under section 151, Civil Procedure Code, invoking the inherent powers of this Court to set aside the preliminary decree passed without jurisdiction and an application of this kind is rot governed by the provisions of the Limitation Act.

(3.) ARTICLE 123 of the Limitation Act provides that the period of limitation is 30 days from the date of decree when there is due service of summons on the defendant. If there is no due service of summons, the period of limitation is 30 days from the date when the applicant had knowledge of the decree. So the main question to be considered is whether the petitioner has been duly served with Suit summons before the ex parte preliminary decree was passed against him. Under Order 5, rule 9, Civil Procedure Code, as it stood at the relevant time, the Court is empowered to have the summons sent by post for service on the defendant and if it is returned unserved, the Court may have the summons served through the officers of the Court. The mode of service of summons which was sent by post or through officers of Court is one and the same and is provided under Order 5, rule 15, Civil Procedure Code. When the defendant is absent the mode of service provided under Order 5, rule 15, Civil Procedure Code, is to serve on an agent empowered to accept service of summons on behalf of the defendant or to serve on any adult member of the family residing with the defendant In the instant case, the summons sent through post was served on one Kamalasekaran who is admittedly not an agent empowered to accept service of summons on behalf of the defendant. So the summons have not been duly served in the manner provided under Order 5, rule 15, Civil Procedure Code. Secondly under Order 5, rule 2, Civil Procedure Code, the summons should be accompanied by a copy of the plaint. In the instant case, the summons sent through post was admittedly not accompanied by a copy the plaint. The service of summons on the defendant without a copy of the plaint is not lega1 service as contemplated under the provisions of the Civil Procedure Code. As there has been no proper service of summons on the first defendant-petitioner, the period of limitation for setting asside the exparte decree passed against him commenced from the date when he had knowledge of the decree. The question when the first defendant-petitioner came to have knowledge of the ex parte preliminary decree passed against him has not been properly adverted to or considered by the lower Court. ]