NAGAPPA CHOWDRY Vs. RANGASWAMI CHETTI

JUDGEMENT

(1.) This is a civil revision petition which has been filed against the order of the learned Judge of the Court of Small Causes, Madras, in M. P. No. 8136 of 1949 in suit No. 3174 of 1948.

(2.) The facts are: Nagappa Chowdry and Natesa Chowdry executed a promissory note for Rs. 600 on 1st June 1947 in favour of one Govindammal. This Govindammal assigned that promissory note for valuable consideration on 27th January 1948 in favour of the plaintiff Rangaswami Chetti. On the foot of that promissory note he filed a suit and the following step was taken. The return Ex. P. 4 states that the ladies in the house Informed the serving officer that the defendants who are residents of Kannampalayam village had gone to Madavakkam, two miles away, and it was not known when they would be coming back and therefore the summons were affixed on the outer-door of the house. Then the court ordered fresh summons by registered post and the registered covers were returned with the endorsement that the addressees were not found in the house to which the covers were addressed. The plaintiff applied for substituted service on the ground that the defendants were evading service. The Court being satisfied that there was evasion ordered substituted service. Publication was made in Dhinamani and there was affixture on the court notice board. The defendants were absent on the final date of hearing 2nd November 1948 & an ex parte decree was passed. The decree-holder took out execution proceedings. On 25th September 1949 he attached the lands of the judgment-debtors at Melapakkam. Thereupon the defendants have come forward with this petition to set aside the ex-parte decree on the ground that they had not been duly served and that therefore they had sufficient cause to be absent on the final date of hearing and that they had come to Court within 30 days of their having knowledge of the decree. The learned Small Cause Judge held that there had been due service and secondly, that these applicants should have come within 30 days from the date of the decree and therefore he dismissed the application. Hence this civil revision petition.

(3.) 'Under Article 164 of the Indian Limitation Act, time runs from the date of the decree or where the summons was not duly served, when the applicant had knowledge of the decree. It will be noted that time will run from the date of knowledge only where the summons is not duly served. Where the summons is duly served the date of the applicant's knowledge of the decree Is immaterial, and time will run from the date of the decree. -- 'Shah Shantilal & Co v. Shibor Walla', (A), -- 'Subramania Iyer v. Krishnaswami Naidu', 108 Ind Cas 753 (Mad) (B); -- 'Doraiswami Iyer v. Bala Sundaram', AIR 1926 Mad 558 (C); -' Sanka Aiyar v. Subbiah Iyar', 13 Ind Cas 642 (Mad) (D). -- 'Baldeo Das v. Shub Chum Das Goenka', AIR 1926 Cal 327 (E), -- 'Ghashiram Baluram v. Misrilal Chinnilal', AIR 1925 Bom 444 (F), -- 'Harcharan v. Md. Azizullah', AIR 1932 Oudh 326 (G).