KRISHNA PADAYACHI Vs. VINAYAKASWAMIAR

JUDGEMENT

(1.) This case raises a point in regard to the applicability of Art. 164 Lim. Act. The defendant was served by substituted service and a decree was passed on 20 June 1927 against him ex parte. He applied on 6 March 1928 for the setting aside of that ex parte decree. The question is, does time run from the date of the decree, or from the date when it came to his knowledge?

(2.) Art. 164 runs thus:

(3.) Can it be said that in every case where the summons is served by substituted service, the starting point is not the date of the decree but the date when it first comes to his knowledge? To accept such a contention would be equivalent to holding that substituted service is in no circumstances due service. There seems to be no warrant for this position. The Civil Procedure Code prescribes several modes of serving the defendant and one such mode is what is known as substituted service. It is impossible to hold that a mode of service prescribed by the Code is not due or proper service. It is to be further noted that the words "duly served" which occur in Art. 164 are also to be found in Order 9, Rule 13, Civil P.C. It enacts that where a decree is passed ex parte, the defendant may apply for an order to set it aside; and the section proceeds to say (I am quoting only the relevant portion): If he satisfies the Court that the summons was not duly served, the Court shall make an order setting aside the decree.