ANAITHALAYAN Vs. MARUDAMUTHU

JUDGEMENT

(1.) THE respondent instituted O. S. No, 302 of 1946 in the Court of the District Munsif, Namakkal, for recovery of possession of certain properties and for mesne profits, and the same was decreed 'ex parte' on 16th September 1946.

(2.) THE defendant then applied in I. A. No. 835 of 1946 to set aside the decree passed 'ex parte' on the ground that the summons was not duly served on him. The facts as found by the Courts below are that the summons was tendered to the defendant on 14 -9 -1946, and that he refused to sign the acknowledgment The contention of the petitioner is that the process -server must either take an acknowledgment from the defendant or affix the summons to the outer door of the house and that as neither was done, there was no due service of summons as required by Order 5, Rule 17 and that, therefore, the Court was bound to set aside the 'ex parte' decree under Order 9, Rule 13. The Courts below met this contention by reference to the proviso to Order 9. Rule 13 enacted in Madras. The proviso 'runs thus:

(3.) THE question is whether this decision can be applied to the present case which is governed by the proviso to Order 5, Rule 13 enacted in Madras. Though it is true that in : AIR1952Cal10 (A) the failure to observe the procedure is described as something more than an irregularity, I am of opinion that the matter really falls under the proviso to Order 9, Rule 13. It is difficult to see to what cases the proviso can be applicable if it is not to apply to cases like this, where the provisions as to service of summons are not complied with strictly. In my opinion, the proviso applies to all cases in which there has been a failure to observe the provisions as to service of summons under Order 5. In all such cases if it be proved that the defendant had notice of the date of hearing in sufficient time to appear and answer the plain -tiff's claim, it will be an irregularity, such as will be cured by the proviso.