SALIG RAM Vs. JUMNA SAHAI

JUDGEMENT

(1.) This is an application in revision which arises out of a suit in the Court of Small Causes at Cawnpore. The relevant facts may shortly be stated as follows : The suit was instituted by the opposite party Jumna Sahai on 13 August 1936. It was a claim for arrears of pay. The 26 August 1936 was fixed by the Court for final hearing. A summons was issued to the defendant, who is the applicant in this Court, on 14 August 1936. The process-server of the Court who was entrusted with the service of the summons proceeded to the applicant's house on 15th August and affixed a copy of the summons to the door of the home. It may be noted here that the process-server himself was not in a position to know where the applicant's house was situated, but he was accompanied by an agent of the opposite party, who pointed out a house to him as the house of the applicant. From the report of the process-server as to the circumstances in which he affixed the summons to the house it appears that he was told by two persons of the locality mimed Har Prasad and Dwarka Prasad that the applicant had gone to the city and was expected to return in the evening. Now the rules laid down in the Civil Procedure Code which should govern the service of a summons upon defendant are to be found in Order 5, Rules 15, 16 and 17. The last named rule, which is relevant to the present case, runs as follows: Where the defendant or his agent or such other person us aforesaid refuses to sign the acknowledgment or where the serving officer, after using all duo and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person present on whom service can be made the serving officer shall affix a copy of the summon on the outer door...

(2.) It is clear from this rule that the procedure of affixing a copy of the summons to the outer door of a defendant's house can come into operation only when certain conditions have been fulfilled, one of them being that the serving officer has used all due and reasonable diligence and has yet failed to find the defendant. In the present case it is admitted that no step was taken by the process-server to find the defendant at all, and that he proceeded to affix a copy of the summons to the door of the applicant's house merely upon being told that the applicant had gone out to the city on some business and was expected to return in the evening. It cannot be reasonably suggested, in these circumstances, that the serving officer had used all due and reasonable diligence to find the defendant before affixing a copy of the summons to the door of the applicant's house. On 19 August 1936, the process-server's report was presumably considered by the Court, and the affixation of the summons to the applicant's house in the circumstances mentioned above was held by the Court to be sufficient service. The case was taken up on 26 August 1936 and the applicant being absent, the Court proceeded immediately to pass an ex parte decree against him. It appears that this decree was put into execution and a notice was issued to the applicant to show cause why he should not be arrested and put in civil confinement. This notice was served on the applicant on 29 March 1937. He then made an application on 9 April 1937 for setting aside the ex parte decree passed against him. This application has been rejected by the learned Small Cause Court Judge on the ground that it was barred by time. Hence the present application in revision.

(3.) It is argued on behalf of the applicant that the lower Court erred in holding that the application for setting aside the final decree was barred by time because the applicant had knowledge of the ex parte decree much more than 30 days before the date on which it was made. The provision in the Limitation Act governing an application by a defendant for an order to set aside a decree passed ex parte is to be found in Art. 164 of Schedule 1 to the Act. According to that Art. the date from which the 30 days period of limitation begins to run is the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. According to the applicant, he obtained knowledge of the decree Only on 29 March 1937 when a notice was served upon him asking him to show cause why he should not be arrested in execution of the decree. This allegation of the applicant was supported by an affidavit made by him in the lower Court. The argument on his behalf is that limitation began to run in the present case not earlier than 29 March 1937, and hence the application for setting aside the ex parte decree which was made on 9 April 1937 was well within time. It is contended that the applicant is entitled to claim that limitation began to run only from the date on which he obtained knowledge of the decree because the summons of the suit in which the decree was passed was not duly served upon him as required by Order 5, Rule 17. These points were apparently urged by the applicant also in the lower Court, and the order by which the learned Small Cause Court Judge dismissed the application for setting aside the ex parte decree runs as follows: The applicant was served sufficiently. I am not prepared to believe that he could not get information of the case of the date of hearing for such a long time. The report of the process server shows that the summons was affixed to applicant's house which was open, because he was reported to have gone out into the town. The decree was put into execution and notice of that was also issued to the applicant. I hold that the application is barred by time. I reject it with costs to the opposite party.