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Case Number

A.A.O Nos. 409 & 410 of 1976

Advocates

Mr. P. Seshadri for Applnt.
Mr. K. Sarvabhauman for Respt.

Judges

Ramannjam, J.

Acts

Art. 164 of the Limitation Act.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The respondent bank filed a mortgage suit to recover Rs. 76,517.85 against defendants 1 to 5 (the first defendant being a firm; defendants 2–4 partners; defendant 5 a minor represented by a court-guardian). The sixth defendant was the Official Assignee for defendants 2–4, who had been adjudicated insolvents.

No personal service of summons was effected on the third defendant (the appellant). Service on him was by substituted service (publication in the newspaper "Malai Murasu") at the suit stage and by affixture at the final decree stage. Only the fifth (through guardian) and sixth defendants appeared; defendants 1–4 (including the appellant) remained absent and were declared ex parte. An ex parte preliminary decree was passed on 31 July 1973, and an ex parte final decree on 11 January 1974.

When the bank sought to sell the mortgaged property, the third defendant filed two applications on 17 July 1975 (I.A. Nos. 660 of 1975 and 688 of 1975) to set aside both the ex parte preliminary and final decrees on the ground that he had not been personally served and only learned of the proceedings on 1 July 1975 through a friend who had seen the newspaper publication.

The respondent resisted the applications, contending that sufficient substituted service had been effected and that the Official Assignee had informed the defendants of the suit. The trial court dismissed the applications, finding that the substituted service and affixture were sufficient and that the appellant had been given due notice but had evaded court; it held the appellant could not complain of a fraudulent ex parte decree. The appellant appealed that dismissal.

Legal Issues Presented

Whether substituted service by publication and service by affixture, when judicially treated as sufficient by the trial court, constitute "due service" within the meaning of the relevant provisions (principally O.5 R.20 and O.9 R.13 C.P.C.), thereby precluding an application under O.9 R.13 to set aside ex parte decrees on the ground of non-personal service.
Whether, notwithstanding a finding that substituted or affixed service was sufficient, the appellant could nevertheless obtain setting aside of the ex parte preliminary and final decrees by showing he was prevented by "sufficient cause" from appearing when the suit was called or when the final decree was passed (alternative ground under O.9 R.13 C.P.C.).
Whether the appellant had actual knowledge of the decree in time to render his application time-barred under the Limitation Act (reference to Art. 164) and how the requirement of specific knowledge (not merely vague knowledge) affects the limitation calculation.

Arguments of the Parties

Appellant's Arguments

The appellant contended that he was not personally served with summons in the suit or with notice in the final decree proceedings.
He asserted that he only became aware of the proceedings on 1 July 1975 through a friend (Veerabadhran) who learned of the proceedings from the newspaper publication, and therefore he should be allowed an opportunity to defend given the large monetary claim.

Respondent's Arguments

The respondent maintained that summons and notices had been duly served (by substituted service and affixture) and that the court properly found those services sufficient under the applicable rules.
It argued that even absent personal service, if the trial court is satisfied that substituted service is sufficient, that amounts to due service (citing Doraiswami Ayyar v. Balasundaram Ayyar).
The respondent further argued that the Official Assignee, who participated in the suit, had kept the defendants informed and thus the appellant should be presumed to have knowledge of the proceedings; additionally it criticized the appellant's supporting witness (Veerabadhran) for not being examined and questioned the timeliness of the applications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Doraiswami Ayyar v. Balasundaram Ayyar, A.I.R. 1927 Mad. 507	Held that the word "duly" in O.9, R.13 C.P.C. is not equivalent to "personally"; if the trial court is judicially satisfied that substituted service is sufficient (under O.5 R.20 C.P.C.), that substituted service is to be treated as due service and is as effectual as personal service.	The court relied on this authority to accept that substituted service by publication and service by affixture, as treated sufficient by the trial court, amounted to due service under O.5 R.20 C.P.C.; however the court proceeded to consider whether the appellant could still succeed under the alternative ground of "sufficient cause" in O.9 R.13 C.P.C.
Syed Muhammad Sahib v. Alagappa Chettiar	Establishes that even after proper service (e.g., by affixture), a defendant may invoke O.9 R.13 C.P.C. on the alternate ground of being prevented by sufficient cause from appearing; for limitation purposes, mere vague knowledge of proceedings is insufficient — the defendant must have specific knowledge that a particular decree was passed against him in a particular court for a particular sum.	The court applied this principle to hold that if the appellant had no specific knowledge of the suit or decree at the time of hearing, he could be regarded as having "sufficient cause" for non-appearance and thus could seek to set aside the ex parte decrees. The court also used the authority to assess the appellant's claimed date of knowledge and the timeliness of his application.

Court's Reasoning and Analysis

Step-by-step, the court's legal analysis proceeded as follows:

The court accepted the factual findings below that the third defendant was not personally served: at the suit stage he was served by substituted service (publication) and at the final decree stage by affixture. The trial court had treated both modes of service as sufficient.
The court acknowledged the legal principle, as stated in Doraiswami Ayyar v. Balasundaram Ayyar, that if a trial court is satisfied that substituted service is sufficient under O.5 R.20 C.P.C., such substituted service can be treated as "due service" for purposes of O.9 R.13 (i.e., "duly served" need not mean personally served).
Notwithstanding a finding of sufficient/substituted service, the court explained the two alternative grounds in O.9 R.13 C.P.C. for setting aside an ex parte decree: (1) the summons was not duly served; or (2) the applicant was prevented by sufficient cause from appearing when the suit was called. The applicant may invoke either ground.
Relying on Syed Muhammad Sahib v. Alagappa Chettiar, the court emphasized that even after proper service, a defendant may show "sufficient cause" for non-appearance. However, for limitation purposes (reference to Art.164 of the Limitation Act), mere vague knowledge is not enough — the defendant must have specific knowledge that a particular decree was passed against him in a particular court for a particular sum.
The court examined the respondent's contention that the Official Assignee had informed the appellant. The documents produced were copies of letters said to have been sent to the appellant, but there was no evidence those communications actually reached him; the appellant denied receipt.
The court noted that the appellant claimed he first learned of the proceedings on 1 July 1975 through a friend (Veerabadhran), but that friend was not examined. The court also observed that all court notices had been sent to the appellant's Kamuthi address, not to his Dindigul residence where he actually lived.
Balancing these facts, the court concluded that the appellant's non-appearance could be treated as due to "sufficient cause" because notices were not sent to his actual residence and there was no proof the Official Assignee's communications reached him. Thus the appellant could invoke O.9 R.13 on grounds of sufficient cause, subject to limitation considerations.
The court therefore allowed the appeals and set aside both the ex parte preliminary and final decrees as against the third defendant, restoring the suit for fresh disposal as to him. The court further directed the lower court to dispose of the suit within two months, given the suit's vintage (filed in 1972), and made no order as to costs.

Holding and Implications

Holding: The appeals were allowed. The ex parte preliminary decree dated 31 July 1973 and the ex parte final decree dated 11 January 1974, insofar as they affected the third defendant, were set aside; the suit was restored for fresh disposal in respect of the third defendant. The lower court was directed to dispose of the suit within two months from receipt of the records. There will be no order as to costs.

Implications:

The immediate practical consequence is that the third defendant is granted another opportunity to contest the suit; execution or sale steps taken by the plaintiff are to be halted insofar as they rely on the set-aside decrees vis-à-vis the third defendant.
The court reaffirmed that judicially-satisfied substituted service (publication or affixture) can amount to "due service" under O.5 R.20 C.P.C. (per Doraiswami Ayyar), but clarified that such a finding does not preclude a defendant from succeeding under the alternative ground of "sufficient cause" in O.9 R.13 C.P.C. if he can show lack of specific knowledge or other adequate cause for non-appearance.
The opinion emphasizes limitation jurisprudence: for the limitation period under the Limitation Act to begin, a party must have specific (not merely vague) knowledge of a decree against him in a particular court for a particular sum (per Syed Muhammad Sahib). The court applied this standard in assessing timeliness and sufficiency of the appellant's cause.
The decision did not announce a novel legal principle; it applied established precedent to the facts and produced a procedural relief for the third defendant. No new binding precedent was stated by the court beyond its application of existing authorities.

Prepared from the provided opinion. No information beyond that text has been added or inferred.

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R.M.T.S.S Dhanasekaran v. State Bank Of India, Dindigul Through Its Agent At Dindigal Branch

1. These two appeals have been filled by the third defendant in O.S No. 97 of 1972 on the file of the Subordinate Judge's Court, Dindigul against the orders dismissing his applications, viz., I.A Nos. 660 of 1975 and 688 of 1275, for setting aside the exparte preliminary decree dated 31st July, 1973 and the exparte final decree dated 11th January, 1974.

2. The respondent bank filed a suit to recover a sum of Rs. 76,517.85 said to be due on a mortgage from the defendants 1 to 5. The first defendant is a firm and defendants 2 to 4 are the partners and the minor 5th defendant has been admitted to the benefits of the partnership. The sixth defendant is the Official Assignee, Madras, in charge of the estate of defendants 2 to 4 who have been adjudicated as insolvents. In the suit, no personal service of summons was effected on the third defendant, but summons had been served by substituted service and by publication in “Malai Murasu” newspaper. The 5th defendant, a minor represented by a court-guardian, and the 6th defendant, the Official Assignee, alone appeared at the trial, and as defendants, 1 to 4 remained absent, they were set ex parte and an exparte preliminary decree came to be passed on 31st July, 1973. Subsequently final decree proceedings were initiated and in those proceedings also due notice was sent to all defendants. So far as the third defendant is concerned, he has been served by affixture and such service has been held to he sufficient. Thereafter, he was set ex parte and final decree has been passed on 11th January, 1974. Thereafter the respondent took steps to bring the morgage property to sale. At that stage on 17th July, 1975 the third defendant (appellant herein) filed the said two applications for setting aside the ex parte preliminary decree as well as the exparte final decree on the ground that he was not personally served with the summons in the suit and notice in the final decree proceedings only on 1st July 1975 through one Veerabadhran, a friend of the appellant, who came to know about the proceedings from the publication in ‘Malai Murasu’

3. The said two applications for setting aside the ex parte preliminary decree and the final decrees were resisted by the respondent (plaintiff) on the ground that the petitioner had sufficient notice of the proceedings, but evaded summons for the reasons best known to himself, that he came to know of the entire proceedings only on 1st July, 1975 was no-true and that as a matter of fact, the appellant and the defendants 1, 2, and 4 had been informed by the Official Assignee and therefore they should be taken to have knowledge of the suit proceedings.

4. The court below by a common judgment held that a perusal of the notes paper in the suit showed that after due publication made the defendants 1 to 4 including the appellant were set ex parte, that the preliminary decree came to be passed after hearing, the court-guardian of the fifth defendant and the Official Assignee, the sixth defendant, that even in the final decree proceedings due notice was sent to the appellant, and other defendants that the court after satisfying itself-about the sufficiency of the notice declared the appellant ex parte, and that therefore, it cannot be stated that the appellant had no sufficient notice of the proceedings. The lower court also took the view that the appellant purposely kept himself out of the court for reasons best known to himself and that he cannot now complain that the plaintiff has obtained an ex parte decree fraudulently.

5. In this appeal it is contended on behalf of the appellant that admittedly he was not personally served in the suit or in the final decree proceedings, that he became aware of the proceedings only on 1st July 1975 through a friend of his and that having regard to the huge claim made in this suit, he should in the interest of justice, be given an opportunity to put forward his defence.

6. The learned counsel for the respondent submits that in this case there has been a due service of summons in the suit, and of notice in the final decree proceedings, on the appellant and that therefore he is not entitled to seek to set aside the ex parte preliminary decree as well as the final decree. According to the learned counsel, even if there had been no personal service on a party if the court considers the service to be a sufficient service, then the service should be taken to be a due service as contemplated under O. 9, R. 13 C.P.C, in which case the appellant cannot invoke the said provision for setting aside the ex parte decrees. In support of the said submission, the learned counsel for the respondent refers to the decision reported in Doraiswami Ayyar v. Balasundaram Ayyar . A.I.R 1927 Mad. 507., wherein Wallace, J., has held that the word ‘duly’ in O. 9, R. 13 C.P.C, is not equivalent to ‘personally’ that if the trial court is satisfied that the substituted service effected is a sufficient service, then it should be taken to be a due service, and that such service is as effectual as if it had been made on a defendant personally. That was also a case where the defendant filed an application to set aside the ex parte decree on the ground that he was not personally served in the suit and that therefore he is entitled to file an application for setting aside the ex parte decree within 30 days from the date of knowledge of the decree as prescribed in Art. 164 of the Limitation Act. Wallace, J., held that on the facts of that case where the trial court was judicially satisfied that the condition laid down in O. 5. R. 20 C.P.C were present to treat the service as ‘due service’ the defendant was not entitled to setaside the ex parte decree merely on the basis that there is no personal service.

7. It is not in dispute that the appellant in this case was not personally served either at the stage of the suit or at the final decree proceedings. At the stage of the suit he has been served by substituted service by publication in a newspaper and at the final decree proceedings he had been served by affixture. Both the services had been treated as sufficient service by the court below. Therefore, it should be taken that the defendant was duly served as per the provision of O. 5, R. 20 C.P.C

8. It appears however that none the less the appellant can seek to set aside the ex parte decree on the ground that he was prevented by sufficient cause from appearing when the suit was called or when the final decree was passed. O. 9, R. 13 C.P.C, sets out two alternative grounds for having the ex parte decree set aside, in an application under O. 9, R. 13 C.P.C The applicant can satisfy the court that (1) the summons was not duly served; or (2) he was prevented by any sufficient cause from appearing when the suit was called on for hearing. He could request the Court to set aside the ex parte decree passed against him an any one of the two grounds. Even if there has been a proper and sufficient service at the stage of the suit and at the stage of the final decree proceedings, if he satisfies the court that he was prevented by sufficient cause from appearing in court he can seek the setting aside of the ex parte decree. In this case the cause shown by the appellant for not being present at the time of the hearing of the suit, or the final decree proceedings is that he was not personally served in those proceedings, as such he was not aware of the proceedings. In Syed Muhammad Sahib v. Alagappa Chettiar there was service of summons in the suit by affixture on the outer door of the defendant's house. The trial court proceeded to decree the suit ex parte declaring the said service by affixture as sufficint service. The defendant thereafter filed an application to set aside the ex parte decree under O. 9, R. 13 C.P.C, Ramesam, J. in that case was of the view that even if there has been a proper service of the summons, the defendant can show sufficient cause for his non-appearance as on alternate ground for invoking O. 9, R. 13 C.P.C, provided such an application is not barred by limitation and that though for the purpose of limitation the defendant's knowledge of the suit will be material, a vague knowledge that a decree had been passed by some court is not enough and it must be found that the defendant had knowledge that a particular decree had been passed against him in a particular court in favour of a particular person and for a particular sum. Therefore, if the appellant is shown to have no knowledge of the suit or the final decree proceeding on the date of the hearing, he can be taken to have shown sufficient cause for non appearance, so as to enable him to invoke Or. 9 R. 13 C.P.C

9. Learned counsel for the respondent would, however, point out that the Official Assignee who is the sixth defendant has been duly served and he, in fact, took part in the suit, as well as in the further proceedings, and that the Official Assignee has duly intimated to all the defendants the progress of the suit at various stages and therefore the appellant should be deemed to have knowledge of the suit and other proceedings from the Official Assignee. But the communications of the Official Assignee filed before the court are only copies of letters said to have been sent to the appellant and there is no evidence to show that those communications actually reached him. In this case the appellant has said that he has not received any communication sent by the Official Assignee intimating about the progress of the suit or the final decree proceedings The learned counsel for the respondent further points out that though the appellant has come forward with a case that he became aware of the suit and the proceeding only on 1st July 1975 through his friend, Veerabadhran, the said Veerabadhran has not been examined. The learned counsel states that even as per the evidence of the appellant, he met Veerabadhran in May-June of 1975 when he was informed about the proceedings and he immediately filed the applications for setting aside the ex parte decree, and that therefore he should have filed the application for setting aside the decree within 30 days from the date of knowledge of the proceedings, but the application had actually been filed only on 17th July 1975. As pointed out by Ramesam, J. in Syed Muhammed Sahib v. Alagappa Chettiar a vague khowledge about certain proceedings is not enough for the limitation to operate and that a specific knowledge that a particular decree has been passed against him in a particular court and for a particular sum has to be attributed to the appellant so as to say that he had such knowledge 30 days before the date of the applications.

10. Having regard to the fact that in this case all the summons and notices from the court had been sent only to Kamuthi address and not to Dindigul address where the appellant is actually residing, his non-appearance before the court on the date of trial can be taken to be for a sufficient cause.

11. In this view the appeals have to be allowed and they are accordingly allowed. The ex parte preliminary decree as well as the final decree will stand set aside, and the suit will be restered to file, so far as the third defendant is concerned, for fresh disposal in accordance with law. Having regard to the fact that the suit is for the year 1972, the lower court is directed to dispose of the suit within two months from the date of receipt of the records by that court. There will be no order as to costs in these appeals.

VCS

R.M.T.S.S Dhanasekaran v. State Bank Of India, Dindigul Through Its Agent At Dindigal Branch

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

R.M.T.S.S Dhanasekaran v. State Bank Of India, Dindigul Through Its Agent At Dindigal Branch

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