Chagla, C.J:—
An interesting question arises in this revision application as to the effect of service of a summons by a registered post under O. V, r. 21A. The ex-parte decree was passed on June 22, 1944 and the defendant was served by registered post. The packet was returned marked “refused”. Execution proceedings were taken out in 1951 and it was at that time according to the defendant that he came to know that a decree had been passed against him and he applied to set aside the ex-parte decree. The trial Court dismissed the application and in appeal the learned District Judge has confirmed that decision. The defendant in his affidavit on the application to set aside the ex-parte decree stated that he was not in Ahmedabad at the material time and he therefore did not receive the registered packet containing the summons.
In Sunder Spinner v. Makan Bhula,(2) a Division Bench of this Court laid down that the Court must allow the defendant a retrial, if, after the decree has been passed against him on evidence that the summons was sent by registered post and returned refused, he appears and denies that the packet had ever been delivered to him by the postal authorities. What is urged by Mr. Shastri is that although that decision was good law at the time when the decision was given, by reason of the enactment of r. 21A in O. V, that decision is no longer good law. Rule 21A was enacted subsequent to the decision in Sunder Spinner v. Makan Bhula. Rule 21A is an enabling rule and it permits the Court to cause a summons to be served by registered post. The rule further provides that an acknowledgment purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be prima facie proof or service. It is clear therefore, that when a registered packet is returned marked refused, it is not prima facie evidence of proof of service. The rule goes on to say:
“In all other cases the Court shall hold such inquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.”
In this particular case the trial Court held an inquiry and declared that the summons had been duly served. Mr. Shastri's contention is that once an inquiry is held as contemplated by this rule and once a declaration is made by Court, that declaration becomes conclusive and the summons must be held to have been duly served, and says Mr. Shastri that if the summons was duly served, then it is not open to the defendant to challenge the ex-parte decree on the ground that the summons was not duly served. Under O. IX, r. 13 a defendant may apply to the Court which passed the ex-parte decree for an order to set it aside, and if he satisfies the Court that the summons was not duly served the Court shall make an order setting aside the decree. Therefore, it is for the Court which hears the application to set aside the ex-parte decree to be satisfied that the summons was not duly served. That Court is not bound by the decision given by the trial Court. The decision of the trial Court as to the sufficiency of service is only for the purpose of passing the ex-parte decree. It is not a decision which can possibly bind the defendant because the inquiry was held ex-parte and the defendant was not represented at that inquiry. Notwithstanding the inquiry under O. V, r. 21A it is open to the defendant to satisfy the Court to which he has made an application for setting aside the ex-parte decree that the summons was not duly served upon him. In a case where service is by registered post, he can satisfy the Court that the summons was not duly served, if he has not acknowledged the receipt of the summons on the registered packet, by showing that the statement on the registered packet that he had refused service of the summons was not correct. In this case the only evidence of service of the summons is the endorsement on the registered packet. The endorsement is made by the postman and the defendant comes before the Court and says that he was not in Ahmedabad at the material time. There is no other evidence on record. Under these circumstances the decision in Sunder Spinner v. Makan Bhula directly applies.
O. V, r. 21A merely deals with the mode of service. As to whether a service is proper or not, where the service is effected by registered post, must be determined by the principle enunciated by Sir Norman Macleod and Mr. Justice Shah in Sunder Spinner v. Makan Bhula, and in my opinion that principle is perfectly sound. Ordinarily, service must be effected personally upon a defendant. order v, r. 21a gives a special facility to the Court in these modern days to effect service by registered post. But even so that convenience must be properly circumscribed so as not to defeat the ends of justice, and it would be a very serious thing if a defendant was not entitled to have an ex-parte decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. Therefore, in my opinion, the Courts below were wrong in refusing to set aside the ex-parte decree on the application made by the defendant.
I would therefore set aside the order of the trial Court and order that the ex-parte decree dated June 22, 1944 be set aside. The opponent must pay the costs of this revision application. Costs of the two Courts below will be costs in the cause.
Rule absolute.
M.W.P