GYANAMMAL Vs. ABDUL HUSSAIN SAHIB

JUDGEMENT

(1.) The appellant in this case obtained a preliminary decree for sale on a mortgage, defendant 1 in the suit being the mortgagor and defendant 2 a purchaser of the equity of redemption. Defendant 2 appealed to the District Judge of Chingleput. That appeal was heard ex par be without any appearance having been put in for the plaintiff, and the decree obtained by the plaintiff in the original Court was set aside. Subsequently the plaintiff made an application to the District Judge under Rule 21 of Order 41 of the Code praying that the ex parte decree against her made in the appeal might be set aside. Before the appeal was heard several attempts were made to serve the plaintiff, and, as they were unsuccessful, eventually an order was made for substituted service on her. That substituted service appears to have been held sufficient, as the learned District Judge disposed of the appeal against the mortgage decree. But, when the plaintiff came forward with her application under Rule 21 of Order 41, she alleged that she had never heard anything about the appeal and wished to give evidence to establish that. The learned District Judge, however, finding that the formalities for substituted service had been properly carried out and, as his order shows, that there was no allegation before him that they had not been properly carried out in due form, refused to give the plaintiff an opportunity of showing that the appeal had never come to her knowledge. He therefore dismissed her application, and the present appeal before us is against that order of dismissal.

(2.) We are not now concerned with the evidence which the plaintiff may be able to produce to show that she did not hear of the appeal against her mortgage decree. But it may be noted in passing that prima facie her allegation that she did not know of the appeal does not appear to be a frivolous one. Having obtained a preliminary decree on her mortgage it is not prima facie probable that she would not have contested the appeal, if she had known of it; and it may be also mentioned that, while the appeal against her decree was pending and after it, she was prosecuting the proceedings in the original Court with the object of obtaining a final decree in her suit. However,. 1 do not wish to go any further into that side of the matter than to say that prima facie her allegation that she did not know of the appeal does not appear to be frivolous. Nevertheless the learned District Judge was of opinion that, because substituted service had been ordered and had been effected, he could not allow the plaintiff an opportunity of proving that she did not know of the appeal. And for the respondent here, defendant 2 in the suit, it is urged that that view of the learned District Judge is correct and that, as substituted service had been effected, the plaintiff cannot now say that she was not duly served: if she was duly served within the letter of the law, then she cannot come under K. 21 of Order 41 and ask for the decree made in the appeal against her be set aside.

(3.) The question what is the exact effect of substituted service in such a case is an important one. Substituted service is a legal method of serving a defendant or respondent, the rules for service on defendants applying also to respondents. The question is whether, when it has been effected with due formality, it is necessarily due service within the meaning of Rule 21 of Order 41, which corresponds to Rule 13 of Order 9 in respect of suits. 1 think the task of answering the question before us will be simplified if we remember that all the rules in the Code relating to service of defendants and respondents are intended to carry out the cardinal principle of our administration of civil justice that no decree shall be made against a party behind his back. There are several methods of service provided. The first and best method of service is personal service on the defendant himself; and in the class of personal service we may include service on the defendant's agent or the manager of his business or a male member of his family residing with him. All that comes within the class of personal service because it may reasonably be inferred, and it is inferrable under the rules, that, if a summons is served upon a defendant's agent or the manager of his business or a male member of his family living with him, it comes to the defendant's knowledge. Obviously the best method of service is upon the defendant himself. But, even if the summons is returned to the Court as having been served on the defendant himself, and he does not appear at the trial of the suit, he is not necessarily concluded. We cannot in all cases say that, because the return is that the summons has been served personally, it has been duly served and so he cannot get an ex parte decree against him set aside. It is open to a defendant in such circumstances to show that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. All these and similar allegations are open to him, even if there is a record that he has been personally served. If after due diligence the process-server is not able to serve a defendant personally, either on himself or his agent or his manager or a member of his family, the rules provide that he may affix the summons to the door of the house in which the defendant ordinarily resides or carries on business; and, when that is done and a return to that effect is made, the Court after taking an affidavit from the process-server may hold that that is due service and proceed with the case. There it will be seen there is a reasonable inference which the Court may draw that the defendant really had knowledge of the suit derived from the notice which was fixed on his door. But in that case the rule is that the Court before proceeding with the case must specifically hold that such service is due service. Obviously the reason of that is that, if the Court is not satisfied that such affixture has been made effectively, a fresh attempt at service must be made. But, although the Court uses in its finding in such cases the words duly served" according to the rule, that does not prevent the defendant from coming in afterwards and showing that the summons was not duly served by affixture because that affixture really did not bring home to him the knowledge of the claim against him. The order made by the Judge that the service by affixture has been due service, which enables the suit to go on, is an ex parte order, and it cannot be suggested that the defendant in those circumstances cannot come in and show that he never had knowledge of the claim against him, that the inference that it was brought to his knowledge by the affixture is for some reason not a sound inference.