MURUGAYYAN KANGIAR Vs. MARUDAYYAMMAL

JUDGEMENT

(1.) THE petitioner is the defendant in a suit O.S. No. 136 of 1952 in the Court of the District Munsiff of Tiruvaiyaru. The decree was passed against him ex parte on 31st July, 1952. On 29th September, 1952, he filed an application under Order 9, Rule 13 of the Code of Civil Procedure to set aside the ex parte decree passed against him. He alleged that he came to know of the decree only on 20th September, 1952.

(2.) THE ground on which he based his application to have the ex parte decree against him set aside was that summons was not duly served on him. The material facts, as to which there is practically no dispute, are that the summons was sent to him by registered post and was returned with the endorsement of the postman "refused". The question is whether there was on these facts sufficient service in law. Postal service of summons was introduced by Sub -rule (3) of Rule 9 of Order 5, which runs as follows:

(3.) THE application was admittedly filed after the expiry of 30 days from the date of the decree. Under Article 164 of Schedule I of the Limitation Act, the period of 30 days can be computed either from the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. I have already found that the summons was not duly served in this case. Therefore, time should be computed from the date when the applicant had knowledge of the decree. According to the defendant he had knowledge only a few days before he filed the application. What was relied on by the plaintiff was that even before the passing of the decree, the defendant must have known about the pendency of the suit, because the postman told him that the summons came from the Munsiff's Court. Assuming that the defendant knew that there was a suit pending against him, that does not necessarily mean he was aware of the fact that a decree had been passed against him. The statement of the petitioner -defendant that he became aware of the decree within thirty days of the date of the application stands uncontradicted and undisproved. The application must therefore be held to be within time.