Imam, C.J:— In this appeal there are two appellants, Bibi Batulan and Phani Bhusan Ghosh, who were defendants 1 and 9 in Suit no. 1 of 1951 in the court of the Subordinate Judge, 2nd Court, at Chapra, which has been described as a redemption suit. This suit was filed in the court of the Subordinate Judge, 2nd Court, at Chapra, on the 4th of January, 1951. It was decreed ex parte as a preliminary decree on the 22nd of August, 1951, and the said decree was drawn up and notified on the 27th of August, 1951. On the 30th of August, 1951, three days having expired and no objection having been raised, the decree was sealed and signed. Thereafter, on the 18th of September, 1953, the plaintiff in the said suit filed a petition that although a preliminary decree had been passed in the suit, the defendants had neither rendered accounts nor had delivered possession. The plaintiff accordingly prayed that a commissioner be appointed to examine the accounts. Commissioner's fee of Rs. 200 was deposited and the court appointed a Pleader, Ragho Prasad Barnwal, as commissioner in the case to prepare the account. It directed the issue of a writ to the 28th of July, 1953, for submission of his report. A petition dated the 25th of July, 1953, under Order 9, rule 13, of the Code of Civil Procedure, was filed by Bibi Batulan and Phani Bhusan Ghosh in the court of the Subordinate Judge, 2nd Court, at Chapra, for the setting aside of the ex parte preliminary decree passed in Suit no. 1 of 1951. That petition was heard and ultimately dismissed by the Subordinate Judge on the 13th of March, 1954. Hence the present appeal. It was the case of Bibi Batulan and Phani Bhusan Ghosh in their petition to set aside the ex parte decree that fraud had been committed in obtaining an ex parte decree without their knowledge and the knowledge of the opposite party other than opposite party no. 1, the plaintiff Shiva Kumar Dwivedi that the witnesses regarding the alleged service of summonses were creatures and clients of the plaintiff Shiva Kumar Dwivedi and they had conspired with the peon not to allow information of Title Suit no. 1 of 1951 to reach the petitioners. Bibi Batulan and Phani, J. Bhusan Ghosh definitely asserted that no summons had been duly served on them, that wrong addresses were deliberately given, that no summons was hung on the gaddi ghar of Kaliagunj Rice Mill or on any portion of the said mill, that Ali Hussain Mian was not the agent empowered to receive summons on behalf of Bibi Batulan and opposite party nos. 2 to 7 and that Siris Chandra Ray was not the authorised agent to receive summons on behalf of Phani Bhusan Ghosh. They further asserted that neither Ali Hussain nor Sisir Chandra Ray received any summons on their behalf. The Subordinate Judge took evidence and on the merits came to the conclusion that in fact the summons had been served and that the substituted service was a valid one and, therefore, there was no ground for setting aside the ex parte decree.
It was contended by the learned Advocate-General on behalf of the appellants that even if the summonses be proved to have been served, they were not duly served in accordance with the provisions of the Code of Civil Procedure, the substituted service being invalid, and not in accordance with Order 5, rule 17, of the Code. His alternative argument was that in fact on the evidence, while the issuing of the notice by the Subordinate Judge, 2nd Court, Chapra, is proved, in fact there was no service of summons at all, and the report of the peon that he had served the summonses by way of substituted service was false and the service report had been concocted. The learned Government Advocate, on behalf of the respondents, on the other hand contended that the summonses had been in fact served and the service report of the peon was a genuine document and that the substituted service in the circumstances of the present case was in accodrance with the provisions of the Code of Civil Procedure and, therefore, it must be held that the summonses were duly served. The learned Advocate-General had urged in the course of his submissions that there was a motive for non-service of summons and keeping the defendants out of knowledge of the existence of Suit no. 1 of 1951 as the suit was for accounts and possession. The learned Government Advocate countered this by submitting that the circumstances would suggest that perhaps the appellants did not think it worth while to resist the. Passing of a preliminary decree because they knew full well that they were liable to render accounts and to deliver possession if the case of the plaintiff was proved. The appellants were, therefore, content to only seriously resist the plaintiff's case at the stage when the question of the preparation of the final decree arose.
It was pointed out by the Advocate-General that Suit no. 1 of 1951 has been wrongly described as a redemption suit. He referred to the plaint in that suit, which is embodied in the paper book, and contended that the suit was essentially one for accounts and possession. According to the plaint, Arjun Singh and Gobind Singh established two mills, a rice mill at Kaliaganj in the district of Dinajpur in West Bengal, and a flour mill at Mirganj in the district of Saran on Bihar. One Nandal Singh was a relation and benamidar of Arjun Singh and Gobind Singh, who were full brothers. The rice mill at Kaliaganj was known as Firm Arjun Singh and Nandlal Singh. Arjun Singh and Nandlal Singh had executed a mortgage bend in favour of one Muhammad Yusuf Mian, husband of Bibi Batulan who was a resident of Mirganj in the district of; Saran. Muhammad Yusuf Mian instituted a mortgage suit, no. 115 of 1934, in the court of the Subordinate Judge, Dinajpur, on the basis of the said mortgage against Arjun Singh and Nandlal Singh. During the pendency of the mortgage suit Muhammad Yusuf Mian died and his heirs were substituted in his place. The said mortgage suit was compromised and in substance the compromise was that the claim of the plaintiffs in the mortgage suit with costs was settled at Rs. 13,255, so far as the mortgage bond was concerned, and an arrangement was arrived at according to the compromise that the rice mill at Kaliaganj and the flour mill at Mirganj would be put in possession of the heirs of Muhammad Yusaf Mian who would run the two mills so long as they were in possession with their own capital and in place of the interest on the capital they were entitled to take 1 anna 3 pies out of the price of the total rice pounded and thereafter the profits made was to be treated as 16 annas, and cut of the 16 annas, 4 annas share would be given to the proprietors of the mill and the balance of 12 annas would be left in deposit with the heirs of Muhammad Yusuf Mian and it would be set off towards the mortgage decree. The decree-holders Would maintain an account of the entire business of the mill according to the Mahajani method and an employee of Arjun Singh would remain in the mill who would copy the bahis of the decree-holders and the employees of Arjun Singh and the decree-holders would sign each other's accounts and at the end of the year there would be an accounting which would contain the signatures of the employees of Arjun Singh and the decree-holders. If, on the other hand, the decree-holders did not wish to run the mills, they would give reasonable notice through a pleader of their intention to give up possession of the mill and thereafter they were to hand over possession of the mill to the judgment-debtors, and after the decretal amount was paid up the decree-holders were to hand over the profits to the proprietors of the mill. This, compromise was by way of an ekrarnama of the 10th of May, 1935, and a compromise decree in the aforesaid mortgage suit embodied the terms of the compromise. On the 17th of August, 1939, Arjun Singh and Gobind Singh executed two sale-deeds in respect of the two mills in favour of two persons who are respondents 9 and 10 in the present appeal. These sale-deeds were compulsorily registered. On the 21st of August, 1939, Arjun Singh and Gobind Singh executed a registered sale-deed concerning their 12 annas share in the two mills in favour of Bibi Batulan and Muhammad Yusuf Mian's children, defendants 1 to 7 in Suit no. 1 of 1951. They also executed another sale-deed of their 4 annas share in the two mills in favour of Bibi. Batulan, defendant no. 1 in Suit no. 1 of 1951. In 1941 respondents 9 and 10 in the present appeal conveyed their 8 annas interest to the plaintiff in Suit no. 1 of 1951, Pundit Shiva Kumar Dwivedi, for a sum of Rs. 5,000. As I have said. Suit no. 1 of 1951 was instituted on the 4th of January, 1951. After the preliminary decree the pleader commissioner who was appointed to take the accounts sent notice on the 27th of June, 1953, to the appellants concerning his visit to the Kaliaganj Rice Mill to inspect the accounts. The Advocate-General contended that the suit being one for possession and accounts it was unlikely that the appellants would allow an ex parte decree to be passed against them. The consequences of allowing an ex parte decree to be passed against them were immense. It would mean that they would have to give up possession of a profitable concern and the only matter which they could seriously contest was the accounting. As it is, the commissioner's report shewed that something like Rs. 15,00,000 was due on the accounting, which, however, on the objection of the defendants, was reduced by the court to something like Rs. 3,23,500 and odd. The suit had been instituted at Chapra, and even on the case of the plaintiff in Suit no. 1 of 1951 the appellants lived at a long distance, namely, at Kaliagani in the district of Dinajpur in West Bengal. Until summonses were served upon the appellants they could not possibly have any idea that any such suit as Suit no. 1 of 1951 had been instituted against them. Having regard to the nature of the compromise made in the mortgage suit of, Muhammad Yusuf Mian and the sale deeds in favour of Bibi Batulan, very serious questions would arise for consideration before a preliminary decree could be passed, and in such circumstances it seems incredible that the appellants would calmly allow a preliminary decree to be passed and merely contest the matter of accounting before the preparation of the final decree. By allowing an ex parte decree to be passed the appellants would certainly have to give to possession even if it was found that the plaintiff was entitled to Re. 1 or that the dues of the decree-holders in the mortgage suit of Muhammad Yusuf Mian had been satisfied, but on the accounting there was nothing due to the plaintiff in Suit no. 1 of 1951. The Advocate-General pointed out that as a result of the compromise Muhammad Yusuf Mian's heirs could run the mills by investing their own capital and that in lieu of interest of their capital they were entitled to take 1 anna 3 pies out of the price of the total rice pounded, a serious question would have arisen as they would have been compelled to give up possession unless the capital invested by them was repaid. Independent of the corn-premise Bibi Batulan had title under the sale deeds. As I have said before, the Government Advocate had contended that the appellants knew full well that they could not keep possession of the mills for ever and they must have known that the decretal amount in the mortgage suit of Muhammad Yusuf Mian had been paid up. Consequently there was not much point in contesting the passing of a preliminary decree. The real contest would be in the matter of accounting before the preparation of the final decree. It would be quite ridiculous to suppose that the plaintiff in Suit no. 1 of 1951 would engineer a conspiracy to gain an ex parte decree. There were many persons impleaded as defendants in the suit and there is nothing to show that summonses on them were suppressed. It seems to me however, that it would be idle to speculate as to whether there was a motive on the part of the plaintiff in Suit no. 1 of 1951 to suppress summonses to be served upon the appellants. What has to be determined in the present case is whether on the evidence it has been established that summonses were served upon the appellants and, if so, were they duly served in accordance with the provisions of the Code of Civil Procedure. It has to be borne in and that the plaintiff is a lawyer practising at Chapra in the district of Saran and presumably is a stranger to Dinajpur. The possibility, of his having got the civil court peon of Dinajpur into conspiracy with him no doubt has to be kept in mind. But there would have to be strong evidence to prove the plaintiff's mala fides before a court could give a positive finding to that effect.
Two questions have to be determined in this appeal. One is as to whether the summonses upon the appellants were in fact served and the other as to whether they were duly served in accordance with the Code of Civil Procedure. On the first question the Subordinate Judge who heard the appellants' petition under Order 9, rule 13, has come to a finding on the evidence before him that in fact summonses were served upon the appellants. The witnesses who have been examined on behalf of the appellants are themselves Kalachand Banerji, said to be an agent of Phani Bhusan Ghosh, and Ali Hussain, who is said to be an agent of Bibi Batulan who refused to receive the summonses with respect to Bibi Batulan and Muhammad Yusuf Mian's children. It cannot be gainsaid that the evidence of all these witnesses is the testimony of interested persons. For them to admit that in fact summonses were served on the appellants was to defeat to a very large extent the purpose of the appellants, namely, to have the ex parte decree set aside. On the other hand, on behalf of the respondents the peon who served the summonses on the appellants has been examined and he has proved his service report. The attesting witness, Mokshada Charan Roy, has been examined. So has the identifier, Bijoy Kumar Singh, been examined. There is no positive proof that the peon and the attesting witness are in the least interested persons to support a false case of summonses having been served upon the appellants. Mere suggestions to that effect would not be sufficient to destroy the effect of their evidence. It was, however, pointed out by the learned Advocate-General that there are contradictions in the evidence of these witnesses as to where the summonses were hung up of the Kaliaganj Rice Mill. According to the service report of the neon (Ext. F. 1), the summonses with a copy of the plaint were hung up on the front door of the gaddi ghar of the mill. According to the peon's evidence in court, he hung it up in the mill. According to the attesting witness, Mokshada Charan Roy, the summonses with a cony of the plaint were hung ut on the outer gate of the mill. According to the identifier, Bijoy Kumar Singh, the peon hung it up on the outer door of the aaddi. These statements are indeed discrepant. It has to be remembered, however, that the summonses with a, copy of the plaint were hung up on the 27th of March, 1951, and the witnesses were giving their evidence in February, 1954. The discrepancies, therefore, may be due to lapse of time. One thing, however, is certain upon the evidence of these witnesses that the summonses with a copy of the plaint were hung up at the Kaliaganj Rice Mill. There is, therefore, no doubt in my mind on a question of fact, namely, that the civil court peon did hang up the summonses with a copy of the plaint at the Kaliaganj Rice Mill and it is impossible to believe the evidence on behalf of the appellants that the civil court peon never hung up the summonses with a copy of the plaint and that in fact there had been no service of summons at all. Such discrepancy as there is as to the place where the summonses and a copy of the plaint were hung up may be of some relevancy in considering the question as to whether the summonses were duly served. It was further pointed out that although in the plaint in Suit no. 1 of 1951 defendants 1 to 7 are shown as residing at Kaliaganj and not at the Kaliaganj Rice Mill, the civil court peon went directly to the Kaliaganj Rice Mill to serve the summonses on Bibi Batulan and defendants 2 to 7. This could not have been if in fact the civil court peon went to serve the summonses. The service report was a concocted one. It is, however, difficult to accept this contention because the appellant Phani Bhusan Ghosh, defendant no. 9 in the suit, has been described as residing at Kaliaganj Rice Mill. The civil court peon, who had not a very clear address of Bibi Batulan and defendants 2 to 7 with him except that they were residents of Kaliaganj, would naturally go to the Kaliaganj Rice Mill, because that was the place shown as the residence of Phani Bhusan Ghosh. There seems to me, therefore, no reason to doubt the statement of the civil court peon in the service report. Indeed, it seems to me that it would be natural for the civil court peon in the circumstances to go to the Kaliaganj Rice Mill first. As to whether he served the summonses there according to law is another matter. It was further pointed out that neither the appellant Bibi Batulan nor defendants 2 to 7 resided at the Kaliaganj Rice Mill, because when the commissioner went to the mill on the 28th of June, 1953, he clearly recorded in his order that Bibi Batulan and defendants 2 to 7 resided outside the boundaries of the rice mill and accordingly he went with Ali Hussain to Bibi Batulan's residence. The civil court peon, therefore, was wrong in suggesting in his service report that Bibi Batulan and defendants 2 to 7 were not present at the mill. Although the civil court peon has not said positively that these persons were residing within the boundaries of the mill, the way his report has been made would insinuate as if they were residing there but were found to be absent. I am not prepared to accept the argument made in this respect, because the report of the peon does not state that Bibi Batulan and defendants 2 to 7 resided in the mill. He merely stated, in the report that these persons not being present, their employee authorised to look after their affairs, Ali Hussain Mian, turned up, and, when he was told the contents of the summons, declined to accept the same and grant receipts. Whatever relevancy this statement may have on the question as to whether summonses were duly served according to law is another matter, but the statement does not convey to me the impression that there was anything by way of a false statement in the service report of the peon. Having examined the evidence in the case and keeping in mind the submissions of the Advocate-General, I can find nothing substantial on the record to hold that in fact there was no service of summonses with a copy of the plaint on the appellants. Consequently, the view of the Subordinate Judge in this respect must be upheld and I would find that in fact the civil court peon of the Dinajpur court did hang up the summonses with a copy of the plaint at the Kaliaganj Rice Mill on the 27th of March, 1951.
The question as to whether the summonses were duly served in accordance with the Code of Civil Procedure must now be considered. The earliest document to show as to what the civil court peon did at Kaliaganj Rice Mill is his service report (Ext. F1). This is a short report and it is best to quote it in full. It reads:—
“In presence of the identifier who pointed out went to the place of service Kaliagunj Rice Mill and learnt that from nos. 1 to 2, 3, 4, 5, 6 and 7 defendants male and female not being present, their employee authorised to look after their affairs and cases Ali Hussain Mian appeared and becoming apprised of the contents of the summons declined to accept the summons and grant receipts. And defendant no. 8 Phani Bhusan Ghosh was not present at the Mill. He had gone to Katihar on some work. On his behalf his authorised employee and Manager Babu Sisir Chandra Rai was present who becoming apprised of the contents declined to accept summons and grant receipt Submitted that I have effected service by hanging summons and cop, of the plaint on the front door of the gaddi ghar of the Mill of defendants nos. 1, 2, 3, 4, 5, 6, 7 and 8.”
It may be mentioned that Phani Bhusan Ghosh is defendant no. 9 in the plaint. The peon describes him as defendant no. 8, which presumably means that he was the eighth person on his list of persons on whom summonses had to be served. As this is the earliest written record of what the civil court peon did at Kaliaganj Rice Mill on the 27th of March, 1951, and his evidence in court does not deviate substantially from his report except in the matter of detail as to where the summonses with the copy of the plaint were hung up, one may proceed to consider the question as to whether the summonses were duly served in the light of what the civil court peon reported in exhibit F1 as to what he had done. It is necessary to set out the procedure dictated by the Code of Civil Procedure as to the manner in which summonses have to be served upon a defendant. Order 5, rule 12, states:—
“Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in, which case service on such agent shall be sufficient.”
Rule 13 states:—
“(1) In a suit relating to any business or work against n, person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager, or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.”
Order 5, rule 14 states:—
“Where in a suit to obtain relief respecting, or compensation for wrong to, immoveable property, service cannot, be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.”
Order 5, rule 15, states:—
“Where in any suit the defendant cannot he found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.
Explanation.—A servant is not a member of the family within the meaning of this rule.”
Order 5, rule 16, need not be referred to as that is concerned with a person on whom the summons is served to sign an acknowledgment of service. Order 5, rule 17, provides for substituted service and it states:—
“Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally work's for gain, and shall then return the original to the Court, from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”
As far as I am able to understand these provisions of the Code of Civil Procedure concerning the manner in which a summons had to be served upon a defendant, it would appear that the purpose of the Code was that as far as possible service of the summons should be made on the defendant in person. If he, however, had an agent empowered to accept, service and not merely an agent, the summons could be served on the agent empowered to accept service and such service would be considered as sufficient. This is precisely what Order 5, rule 12, states, and that rule is in my opinion, the key to the whole of the procedure embodied in the Cede for the service of summons upon a defendant. In the other rules, namely, rules 13, 14, 15 and 17, of Order 5, alternatives are provided for the service of summons, depending upon that circumstances of the case. In my judgment if the procedure indicated in Order 5, rule 12, cannot be observed, it is only then that a court has to consider the effect of rules 13, 14, 15 and 17 of Order 5. Rule 13 of Order 5 cannot, in my opinion, apply to the facts of the present case, because on reading the plaint in Suit no. 1 of 1951 I cannot conclude that this was a suit relating to any business or work against the defendants in that suit. The suit was one for delivery of possession of immoveable property and for accounting. Furthermore, even if the person against whom such a suit is brought does not reside within the local limits of the jurisdiction of the court which issued the summons, service on any manager or agent shall be deemed to be good service, if such manager or agent at the time of the service personally carried on the business or the work within the limits of the court which issued the summons. On the admitted facts, neither Ali Hussain Mian nor Sisir Chandra Ray, even if they be assumed to be either managers or agents of the appellants, personally carried on the business of the appellants within the limits of the court which issued the summons, namely, the Chapra Court. Order 5, rule 14, contemplates that where service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, service may be made on any agent of the defendant in charge of the property, when the suit is instituted to obtain relief respecting, or compensation for wrong to, immoveable property. Assuming that Suit no. 1 of 1951 was a suit to obtain relief respecting immoveable property, because it sought to have possession delivered of immoveable property, the evidence in the case is quite silent that the service could not be made on the defendants in person. It is quite clear, on the evidence that the defendants Bibi Batulan and Phani Bhusan Ghosh had no agent empowered to accept the service. Whatever the position of Ali Hussain and Sisir Chandra Ray vis a vis the appellants may have been, there is no direct evidence to prove that they were agents of these defendants in charge of the property which was the subject matter of the suit. At best on the evidence it may have been established that Sisir Chandra Ray was the Manager of the Kaliaganj Rice Mill and that Ali Hussain Mian did look after the affairs of Bibi Batulan and the children of Muhammad Yusuf Mian as well as their cases. That, however, is quite different from Ali Hussain Mian and Sisir Chandra Ray being agents in charge of the property, the Kaliaganj Rice Mill, belonging to Bibi Batulan and Phani Bhusan Ghosh. Order 5, rule 15, need not be discussed, as it is nobody's case that any attempt was made to serve, the summonses on any adult member of the family of Bibi Batulan and Phani Bhusan Ghosh who was residing with them. The explanation to rule 15 clearly contemplates that a servant is not a member of the family within the meaning of that rule. The real question, therefore, resolves into this, as to whether substituted service on Bibi Batulan and the children of Muhammad Yusuf Mian and Phani Bhusan Ghosh was made in accordance with the provisions of Order 5, rule 17. When the service report was received by the Chapra Court, the Subordinate Judge recorded in his order sheet of the 21st of April, 1951, that the service on defendants 1 to 7, that is to say, on Bibi Batulan and the children of Muhammad Yusuf Mian, could not be accepted as sufficient unless the plaintiff swore an affidavit to the effect that Ali Hussain was an empowered agent of these persons and resided with them. The ordersheet of the 2nd of May, 1951, shows that an affidavit was filed, on behalf of the plaintiff to the effect that Ali Hussain Mian was an empowered agent of Bibi Batulan and the children of Muhammad Yusuf Mian. The Subordinate Judge accordingly thought that the service of summons on these defendants must now be deemed to be sufficient. So far as Phani Bhusan Ghosh is concerned, the order-sheet of the 21st of April, 1951, shows that the Subordinate Judge recorded that summons on defendant no. 9 had been served. The affidavit filed by the plaintiff has not been included in the paper-book, but this Court sent for the affidavit from the court of the Subordinate Judge, which, in my opinion does not carry the matter any further or throw any light as to whether Ali Hussain was an empowered agent of Bibi Batulan and the children of Muhammad Yusuf Mian. As I have said already, there is no proof in the case that Ali Hussain Mian was an agent empowered to accept service. I have quoted in full the service report of the civil court peon. So far as Bibi Batulan and the children of Muhammad Yusuf Mian are concerned, it merely states that they were not present at the Kaliaganj Rice Mill. It is apparent from what the pleader commissioner recorded in his order-sheet of the 28th of June, 1953 (Ext. J.) that Bibi Batulan and the children of Muhammad Yusuf Mian did not reside within the precincts of the Kaliaganj Rice Mill; on the contrary, their residence was outside that Mill. The service report of the peon does not show that he made any attempt to find out the residence of Bibi Batulan and the children cf, Muhammad Yusuf Mian. Bibi Batulan may be regarded as a purdanashin lady and, therefore, it may reasonably be held that it was not practicable for the peon to serve the summons on her in person. That, however, could not absolve the peon from doing his duty, namely, to go to the house where she resided and make an attempt to serve the summons on an adult male member of her family who was residing with her. In the nature of things Bibi Batulan could not be, expected to be found at the Kaliaganj Rice Mill, being a purdanashin lady. So far as the children of Muhammad Yusuf Mian are concerned, who were defendants 2 to 7 in Suit no. 1 of 1951, all that one gets from the service report of the peon is that they were also not found at the Kaliaganj Rice Mill. These children of Muhmamad Yusuf Mian are not shown as minors in the plaint. Although some confusion has arisen in the case by Ali Hussain asserting before the pleader commissioner that he was the next friend and guardian, there seems to be no legal evidence in the case to prove that the children of Muhammad Yusuf Mian were in fact minors at the time the peon went to serve the summonses at Kaliaganj Rice Mill. Whether in fact the children of Muhammad Yusuf Mian were minors at that time is a question of fact upon which no finding can be given, because legal evidence in that respect, so far as the present case if concerned, is wholly lacking. Whether these persons were in fact minors or not, the peon's service report clearly shows that he made no attempt to go to their residence or to find their whereabouts. If the children of Muhammad Yusuf Mian were majors at the time; the peon went to the Kaliaganj Rice Mill, they had a status in the suit independent of Bibi Batulan and Ali Hussain Mian. Service of summons in accordance with law was as essential in their case as it was in the case of any other defendant. Service of summons on Bibi Batulan or Ali Hussain Mian could not be considered as sufficient service upon the children of Muhammad Yusuf Mian. I have referred to this matter in same detail as it seems to me there has been same confusion in the case in regarding substituted service on Bibi Batulan and the children of Muhammad Yusuf Mian as being sufficient merely because of the position which Ali Hussain is said to occupy with reference to them. There is no proof in the case that Ali Hussain Mian was the agent empowered to accept service on behalf of the children of Muhammad Yusuf Mian. Nor is there clear evidence to show that he was their agent in charge of their property on whom a valid summons could be served. It seems to me, therefore, that on the service report itself the peon did not use all due and reasonable diligence in finding out the children of Muhammad Yusuf Mian who were defendants 2 to 7 in Suit no. 1 of 1951 in the court of the Subordinate Judge at Chapra. So far as Phani Bhusan Ghosh is concerned, the service report itself shows that the peon merely came to know that this defendant had gone to Katihar on some work, upon which he attempted to serve the summons on his Manager Sisir Chandra, Ray. The peon made, no enquiries as to when Phani Bhusan Ghosh was likely to return from Katihar and he made no effort to await his arrival for a reasonable time. Unfortunately the peon thought that merely because Phani Bhusan Ghosh had gone to Katihar he could ask his Manager, Sisir Chandra Ray, to accept the summons. If the peon had made some enquiry as to when Phani Bhusan Ghosh was likely to return from Katihar and found that it would be quite a long time before he did so, he may possibly have been justified in not waiting for an unreasonable length of time. The civil court peon was examined as a witness in the case and even in his evidence the utmost that he has said is that he searched for the defendants but all of them were out. He does not say that he made enquiries as to when and where the defendants were likely to be found. He does not state that he made any effort to ascertain when Phani Bhusan Ghosh was likely to return from Katihar. We know from the order-sheet of the pleader commissioner (Ext. 3), when he visited the Kaliaganj Rice Mill on the 26th of June, 1953, that he entered the Mill in order to trace the residence of the defendants but in vain, although he was there from 6-15 P.M to 7 P.M On the 27th of June 1953, the pleader commissioner again went to the Mill at 6 A.M, to ascertain the residence of Phani Bhusan Ghosh and he found his residence at 7-15 A.M On enquiry he found that Phani Bhusan Ghosh was inside while engaged in the work of the Rice Mill and he waited for him until 5-30 P.M, except for an interval of about half an hour between 12 and 12-30 P.M Phani Bhusan Ghosh came out all of a sudden and he managed to serve the notice concerning his writ on Phani Bhusan Ghosh at 5-35 P.M This would show that at least in June, 1953, Phani Bhusan Ghosh was residing at Kaliaganj and was actively engaged in the working of the Rice Mill. The Government Advocate, however, relied upon the statement in the petition under Order 9, rule 13, of the Code to set aside the ex parte decree to show that in 1951 Phani Bhusan Ghosh resided in East Pakistan and his work at Kaliaganj was looked after by Kalachand Banerji. The Government Advocate urged that in view of this statement it was clear that in 1951 Phani Bhusan Ghosh could not be found at Kaliaganj and, therefore, substituted service on him was a valid one. Apart from the question as to whether Phani Bhusan Ghosh has made a truthful statement in stating that in 1951 he was residing in East Pakistan, it would be clear from the service report of the peon that such information as was given to him was merely to the effect that Phani Bhusan Ghosh had gone to Katihar for some work. Katihar, it may be observed, is not in East Pakistan but is within the territories of the Union of India. It is further significant that in 1953 the pleader commissioner found Phani Bhusan Ghosh actively engaged in the working of the Kaliaganj Rice Mill. I am unable, therefore, to accept the statement in the petition under Order 9, rule 13, that in 1951 Phani Bhusan Ghosh was residing in East Pakistan. Whatever the actual truth may be, on the service report of the peon it could not have been said that resort could be had to substituted service merely because the peon received information that Phani Bhusan Ghosh had gone to Katihar for some work. It seems to me that on the information received by the peon it was his duty to exercise all due and reasonable diligence in finding out Phani Bhusan Ghosh before he resorted to the method of substituted service. He would have exercised due and reasonable diligence if he had made enquiries as to how long it would be before Phani Bhusan Ghosh returned to Kaliaganj Rice Mill from Katihar; and if on finding that Phani Bhusan Ghosh would not be returning within a reasonable time, he could then have proceeded to serve the summons according to law, personal service upon Phani Bhusan Ghosh being impracticable. In the case of Cohen v. Nursing Dass Auddy Comer Petheram, C.J, in dealing with section 80 of the Code of Civil Procedure expressed himself as follows:—
“Section 80 of the Code is intended for cases in which the writ should he affixed in the way required by that section after a proper, attempt has been made to find the defendant. It is true that you may go to a man's house and not find him, but that is not attempting to find him. You should go to his house, make enquiries, and if necessary follow him. You should make enquiries to find out when be is likely to be at home, and go to the house at a time when he can be found. Before service like this can be effected it must be shown that proper efforts have been made to find out when and where the defendant is likely to be found—not as seems to be done in this country, to go to his house in a perfunctory way, and because he has not been found there, to affix a copy of the summons on the outer door of his house. I think this affidavit is insufficient, and it is as well that person should know that such service is not good Service and that suits should not be tried as undefended suits on service such as has been relied on in this case. A proper attempt must be made to find the defendant and serve him with the writ.”
section 80 of the Code of Civil Procedure of that time corresponds to Order 5, rule 17, of the present Code, except that the words “after using all due and reasonable diligence” were not to be found in section 80 of the Code of 1882. I would not be surprised if the opinion expressed by Sir Comer Petheram resulted in the insertion of the words “after using all due and reasonable diligence” in Order 5, rule 17, of the Code of Civil Procedure of 1908. Indeed a fair reading of the provisions of Order 5, rule 12, and onwards, was I have said already, suggests that the intention of the Legislature was that summons upon the defendant should, as far as possible, be served personally and the alternative procedure of service of summons should be resorted to when that course was not practicable. In the case of Kassim Ebrahim Saleji v. Johwmull Khemka a Full Bench of the Calcutta High Court held that for substituted, service of summons to be effective, it was essential that the requirements of the rules of the Code should be strictly observed. In that case, although the Full Bench were satisfied that the defendant had knowledge of the suit filed against him, it was held, in the circumstances of the case, that the service was not sufficient. The summons was served at no. 1, Amratolla Lane in Calcutta, where the defendant carried on business with his partner, and tried to find him there on the days in question, and on learning from some one that the defendant was not at that place at that time the bailiff cried aloud his name three times and then posted the summons upon the premises. It was held that no. 1, Amratolla Lane was not the place where the defendant ordinarily resided, and Sanderson, C.J observed:—
“The serving officer went to the defendant's place of business, where he carries on business with his partner. There is no mention in the affidavit that the defendant resides there. In fact the defendant swears that he does not ordinarly reside there and, I am not prepared to hold that merely going to a man's place of business on three separate days, a place of business, where he carries on business with other partners and where he may or may not be on these particular days or at the particular time of the day—and merely asking for him and then when he does not find him, posting a copy of the writ on the outer door of the premises is sufficient service.”
Wooddroffe, J., was also of the opinion that the fact that the defendant had knowledge of the institution of the suit was not sufficient if service was not formally proved. He further expressed the opinion that as there was no question in the case that the respondent did not go to the house or residence it could not be said that all due and reasonable diligence was used to find the defendant. Mookerjee, J. observed:—
“I am not prepared to affirm the proposition that if the plaintiff makes no effort whatever to find the defendant in the place where he ordinarily resides and not finding him where he carries on business along with others, affixes the summons upon a conspicuous part of the business premises, the requirements of the Code are satisfied.”
In the case of Dina Nath Pati v. Upendra Nandan Das Mahapatra a Division Bench of the Calcutta High Court held that personal service of notice should not be dispensed with unless it was unavoidable to do so or unless there was an agent empowered to accept service. Where the notice was sent for service at the place mentioned in the plaint as the plaintiff's residence but the peon on arriving there did not find the plaintiff or any male member of the family, but found there servant of the plaintiff and was told that the, plaintiff was at that time living at his own bari at a village some two or three miles distant, it was not sufficient service to affix the notice at the entrance of the plaintiff's house as the peon did not use due and reasonable diligence. In the case of Baldeodas Lohia v. Subkarandas Goenka it was held by a Single Judge that it was not enough to attend at the ordinary place of residence or of business or the place where the defendant personally works for gain, and to conclude that substituted service may be effected merely because at the time when, the serving peon attends at such place the defendant does not happen to be there. It made no difference that the peon attended at such place once or three times. It was necessary for the serving peon to institute proper enquiries to endeavour to ascertain the whereabouts of the defendant. Before the serving peon can take advantage of the provisions of Order 5, rule 17, he must attend at the right place and be must attend at a, time when he may reasonably expect that the defendant will be present, and if he fails to find the defendant he must take reasonable steps to discover where the defendant may happen to be. In the case of Bhowanidas-Ramgobind v. Pannachand-Luchmipat the same learned Judge was of the opinion that the plaintiff must use reasonable diligence to ascertain the whereabouts of the defendant, and where the defendant according to the plaintiff, resided at two places, the plaintiff could not be held; to have used reasonable diligence to discover the defendant's whereabouts if he did not make enquiries for the defendant at both the places. In the case of Jhabarmull Dudhwalla v. Bhagatram Serowgif a Division Bench of the Calcutta High Court was of the opinion that to go to a businessman's residence during business hours, when ordinarily he is away at his business premises elsewhere, for the purpose of serving a summons upon him, and not finding him at his residence on call, affix the process on the outer door of the residence, without making any enquiry or any attempt to find him, is not due service within the meaning of Order 5, rule 17, of the Code of Civil Procedure, as amended by the Calcutta High Court. In the case of Tripura Modern Bank Ltd. v. Banson and Co. a Single Judge of that Court has considered the provisions of Order 5, rule 17, of the Code of Civil Procedure, as amended by that Court, concerning the meaning of the words “reasonable time”. It is unnecessary to refer to this case in detail, but there are observations in it which are consistent with the decisions of the Calcutta High Court to which I have already made reference. In the case of Salig Ram…Defendant Applicant; v. Jumna Sahai…Plaintiff Opposite Party. it was held that where no step was taken to find the defendant at all, and the process-server proceeded to affix a copy of the summons to the door of the defendant's house merely upon being told that he had gone to the city on some business and was expected to return in the evening, it could not be reasonably, suggested 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 defendant's house. In the case of A.S.P.L.V.S Ramaswami Chettyar v. S. Suni Mohamad Rowthar a Single Judge of the Rangoon High Court held that the serving peon before he can take advantage of the provisions of Order V, rule 17 of the Code of Civil Procedure must attend at the right place and he must attend at a time when he may reasonably expect that the defendant will be present, and if he fails to find the defendant, he must take reasonable steps to discover where the defendant may happen to be. I have referred to these various decisions of the Calcutta High Court, the Allahabad High Court and the Rangoon High Court in support of the view which I take that it was not enough in the present case for the peon to hang up the summonses and a copy of the plaint at the Mill merely because he had been informed that Phani Bhusan Ghosh had gone to Katihar on some work. His report ought to have shown that he did take some steps to find out the whereabouts, of Phani Bhusan Ghosh or that he made enquiries as to when he was returning. The service report, however, is entirely silent on this subject and I am not prepared to accept the evidence of the peon in court that he searched for the defendants. There is nothing in the report itself to show that he did anything of the kind.
It seems to me, therefore, however much one may gather the impression that the appellants might have known of the existence of Suit no. 1 of 1951 in the court of the Subordinate Judge of Chapra, it does not appear that substituted service was done in the present case in accordance with law and it is difficult to hold that the summonses were duly served upon the appellants. It is true that Bibi Batulan being a purdanashin lady the summons could not be served on her in person and, therefore, she may be regarded as a person who could not be found. In her case, however, the civil court peon should have gone to the house where she ordinarily resided and made some effort to serve the summons on a person authorised by her to receive summons or some male member of her family who resided with her. It is difficult indeed to say in this case that the summonses were duly served merely because the civil court peon approached Ali Hussain Mian and Sisir Chandra Ray because he was informed that they were the agents of Bibi Batulan and Phani Bhusan Ghosh. It is quite clear that they were not persons who were empowered to receive summons on their behalf. In the case of Ali Hussain Mian, he probably does look after in a friendly way the interests of Bibi Batulan. But that is quite a different thing from regarding him as one empowered to receive summons or as an agent of Bibi Batulan in charge of her property. So far as Sisir Chandra Ray is concerned, it may be assumed on the evidence that he was the Manager of the Kaliaganj Rice Mill under Phani Bhusan Ghosh. But I find it difficult to hold in the present case that he was an agent of Phani Bhusan Ghosh in charge of his property. The order-sheet of the pleader commissioner shows quite clearly that when be visited the Kaliaganj Rice Mill in June, 1953, he found Phani Bhusan Ghosh taking active interest in the working of the rice mill. Whatever the position of his Manager may have been. Phani Bhusan Ghosh was in fact in charge of the Kaliaganj Rice Mill and actively supervising it working. Looking at the circumstances as a whole and reading the service report in this case I find it difficult to hold that summonses were duly served upon the appellants.
A question arose in this appeal, which apparently was not raised in the court below the judgment of the Subordinate Judge is certainly silent on it. That question is as to whether the appellants' application under Order 9, rule 13, to set aside the ex parte decree is barred by time; The ex parte decree is dated the 22nd of August, 1951, and the application under Order 9, rule 13, was filed on the 25th of July, 1953. Before the application can be allowed to succeed a court must determine whether the application is barred by the provisions of the Indian Limitation Act, even if this plea was not raised in the court of the Subordinate Judge. The provision of the Limitation Act, which governs the matter, is Article 164, which provides the period of 30 days for a defendant to file an application to set aside a decree passed ex parte from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. Where on the face of it an application under Order 9, rule 13, appears to be barred, the onus is upon the defendant to show that it is within time. Article 164 of the Limitation Act gives two dates from which the period of 30 days has to be calculated. One is the date of the decree and the other is the date of knowledge of the decree on the part of the defendant. If the summons had been duly served in the present case, there could be no question that the present application was barred by the provisions of Article 164 of the Limitation Act, as the application under Order 9, rule 13, was certainly filed after 30 days of the date of the decree. I have, however, found in the present case that summonses were not duly served. The present application, therefore, will come under the latter part of Article 164 of the Limitation Act and it has to be seen as to whether the appellants had discharged the burden which was on them to shew that they had filed their application under Order 9 rule 13, within 30 days from the date of knowledge of the decree. According to the appellants, they came to know of the ex parte decree for the first time on the 27th of June, 1953, when they received notice from the pleader commissioner, Raghab Prasad Baranwal. Thereafter they came to Chapra on the 24th of July 1953, to make enquiries, and after inspecting the, records they filed the application under Order 9, rule, 13, on the 25th of July, 1953. If this story of the appellants is accepted as true, then certainly the application under Order 9, rule 13, of the Code was filed within 30 days from the date of knowledge, namely, the 27th of June, 1953. It is to be noticed that Article 164 does not speak of the date of knowledge of the suit but the date of the knowledge of the decree. Having regard to what I have stated, one may assume that the appellants had some knowledge about Suit no. 1 of 1951 in the court of the Subordinate Judge at Chapra, because I have accepted as a fact that the peon did hang up the summonses with a copy of the plaint at the Kaliaganj Rice Mill after having informed Ali Hussain Mian and Sisir Chandra Ray. It is difficult to believe that these two persons conveyed no information to the appellants about it. Knowledge of the suit, however, is one thing, and knowledge of the ex parte decree passed against the appellants is another. The peon had hung up the summons and a copy of the plaint on the 27th of March, 1951, and the ex parte decree was passed on the 22nd of August, 1951. That is to say, nearly five months elapsed before the preliminary decree was passed after the hanging up of the summonses at the Kaliaganj Rice Mill. While a defendant may have knowledge of the existence of a suit against him, that circumstance is not in itself sufficient to establish that he had the knowledge that a decree had been passed against him in that suit. The mere filing of a suit does not raise a presumption that a decree has been passed in that suit, because it is possible to conceive a situation where the plaintiff through his default has allowed the suit to be dismissed. As I have said before, it was nearly five months after the hanging up of the summonses at the Kaliaganj Rice Mill that a preliminary decree was passed by the Subordinate Judge. Since the passing of the preliminary decree there is nothing to show until the 27th of June, 1953, that the appellants had any idea that a decree had been passed against them. Indeed the order-sheet of the Subordinate Judge shows that it was not until 1953 that the plaintiff in Suit no. 1 of 1951 made any application before the Subordinate Judge with respect to any matter arising out of the preliminary decree. It was then that the plaintiff asked for the appointment of a pleader commissioner to take accounts. There is nothing on the record to show that since the passing of the preliminary decree and the application of the plaintiff in 1953 the plaintiff in any way communicated to the appellants that a preliminary decree had been passed in the suit and that they should render accounts and give up possession of the Kaliaganj Rice Mill. This long period in which nothing happened would seem to suggest to me a circumstance from which it is possible to infer that the appellants had no knowledge that a preliminary decree had been passed against them until they received the notice from the pleader commissioner. It is somewhat surprising that the plaintiff waited for so long since the passing of the preliminary decree to move the court for the appointment of a commissioner. The ground upon which the plaintiff made such an application was that although a preliminary decree had been passed in the suit the defendants had neither rendered accounts nor had given up possession. The longer the time elapsed since the hanging up of the summonses at the Kaliaganj Rice Mill without anything further happening the more likely were the appellants to believe that in spite of the hanging up of the summonses no decree had been passed against them. In any event, the onus, which was on the appellants to prove as to when they had knowledge of the decree, has been, in my opinion, discharged by them, because they had given evidence in that respect, and there is no evidence on the side of the respondent to show that the appellants had knowledge of the preliminary decree passed against them at a date prior to that stated by the appellants or at a date beyond 30 days from the 25th of July, 1953, when the application under Order 9, rule 13 was filed by the appellants. When the pleader commissioner went to Kaliaganj Rice Mill in June, 1953, he took the deposition of Ali Hussain Mian on the 28th of June, 1953, and Ali Hussain Mian clearly stated that he had no knowledge of Suit no. 1 of 1951 and that he had only then learnt about it through the pleader commissioner when notices were served by the latter and that he would contest the suit. Ali Hussain also addressed a letter to the pleader commissioner on the 18th of July, 1953 (Ext. C.). He therein expressly stated that none of them knew about the case and that they would contest the case in court. It seems to me therefore, that as soon as the pleader commissioner arrived at Kaliaganj Rice Mill he was definitely informed by Ali Hussain Mian that they had no knowledge about the case and that they would contest the matter in court. This conduct is consistent with the story of the appellants that they had no idea of the suit itself, much less the decree passed, in the suit. While a court has to be somewhat careful in accepting the mere assertion of a defendant as to when he had the knowledge about the decree, it seems to me that in the present case there would be no good reason for rejecting the evidence on behalf of the appellants as to the date of knowledge of the decree. The circumstances in the case to which I have already made reference suggest to me that the evidence on behalf of the appellants in this respect is true and I would hold that they came to know of the preliminary decree on the 27th of June, 1953.
I would make reference to some of the reported cases on the question of limitation. In the case of Bapurao Sitaram Karmarkar v. Sadbu Bhiva Gholap it was held that under Article 164 of the Limitation Act, in order to show that the applicant had knowledge of the decree, it must be proved that the applicant 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 and not merely the knowledge that a decree had been passed by some court against him. In the course of the judgment-Macleod, C.J observed.
“But we do not think that the Legislature meant to go to the other extreme by laying down that time began to run from the time the judgment-debtor might have received some vague information that a decree had been passed against him”.
In the present case whatever suspicion one may have about the appellants having knowledge of the suit against them and the possibility that a decree might have been passed against them, the suspicion would be much too uncertain and vague to justify the conclusion that they had knowledge of the preliminary decree passed against them in favour of the plaintiff in Suit no. 1 of 1951 in the court of the Subordinate Judge of Chapra. In the case of Rajeshwari Prasad Singh v. Brahmanand Lall, Noor, J. observed:—
“In the present case the application is obviously not within thirty days of the decree: but as there is a clear finding of the learned Small Cause Court Judge that the summons was not only served on the applicant, the applicant did come within the second part of the Article, and he was entitled to come within thirty days of his knowledge of the decree. The learned Small, Cause Court Judge is in error when he expects the application within thirty days of the knowledge of the suit. The period is to be counted from the date of the knowledge of the decree, and not from the date of the knowledge of the suit.”
In the case of Kedar Nath Singh v. Kesri Mull a Division Bench of this Court held that the knowledge of the decree mentioned in Article 164 is knowledge of the particular decree and not a knowledge of a decree. A vague information about there being a decree is not sufficient for the period of limitation to run against the applicant. The question whether the knowledge which an applicant had on a particular date can be said to be a knowledge of the decree, is practically a question of fact, and in a case where applicant filed an application for time in the execution proceedings, from the fact that he knew that a decree was under execution, it could not be inferred that he had complete information about the decree. Noor, J., in delivering the judgment of the Court observed:—
“Therefore when on 15th January, 1934 he filed the application for time in the execution proceedings, he must be presumed to have known at least on that date that the decree under execution was the one of which the suit had already been instituted. We must therefore attribute to him the knowledge of the decree on 15th January, 1934, and the application having been filed on 24th February, 1934 was out of time. First of all there is no evidence that the appellant knew of the suit. The utmost which can be said is that it is likely that he knew of it. But the knowledge of suit is one thing and the knowledge of decree is another. It has been held and I may refer among others to the decision in Bapurao Samarram v. Sadhu Bhivba that the knowledge of the decree mentioned in Article 164 of the Limitation Act is the knowledge of the particular decree and not a knowledge of a decree. A vague information about there being a decree is not sufficient for the period of limitation to run against the applicant. In my opinion the question whether the knowledge which an applicant had on a particular date can be said to be aknowledge of the decree is practically a question of fact.
In this case we find that on 15th January, 1934 (it may be noted that this was the date on which the great earthquake occurred in this province) he filed an application for time in the execution proceedings. From the fact that he knew that a decree was under execution it cannot be inferred that he had complete information about the decree. A knowledge of a decree which was on the face of it inter partes, even if he saw it on that day, cannot be said to be the knowledge of the decree passed under the circumstances stated above. In fact, we find that within ten days of that date he actually applied for an inspection of the record of the suit. An indefinite knowledge which he had on 15th January, 1934, of a decree against him being under execution in my opinion is not the knowledge contemplated in Article 164 of the Limitation Act.” It will be seen from what Noor, J., has said that in the case which he was deciding, although the applicant had knowledge of a decree on the 15th of January, 1934, it could not be inferred that he had complete information about the decree. In the present case with which I am dealing there is no evidence either direct or circumstantial from which a court could possibly say that the appellants had any knowledge of any decree whatsoever, much less the particular decree obtained by the plaintiff in Suit no. 1 of 1951 in the court of the Subordinate Judge of Chapra. In the case of Muhammad Sahib v. A.P.R.L Alagappa Chettiar a Single Judge of that Court held that unless the Court finds positively that the petitioner was aware of the decree at a time which was more than a month before the petition it is not barred by limitation. A vague knowledge that a decree had been passed by some Court is not enough. 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. A vague suspicion that the defendant must have heard of some decree is not enough to dismiss his petition on the ground that it is barred by limitation. In the case of Mir Ahmed v. Pir Bakhsh a Single Judge of that Court held that the fact that a party had the knowledge of the suit on a particular date is a wholly immaterial circumstance for the purposes of computing limitation under Article 164. The second part of that Article comes into operation only where the application is made more than 50 days after the passing of the decree and the applicant pleads that he had not been duly served and had knowledge of the decree within 30 days from the day on which he made the application. The various cases to which I have made reference, of this Court, the Bombay High Court, the Madras High Court and the Lahore High Court, clearly indicate that before a Court could positively hold that an application under Order 9, rule 13, was barred under the provisions of Article 164 of the Limitation Act it must find upon clear and positive evidence that the applicant had knowledge of the particular decree against him more than 30 days before he filed the application to set aside that decree. If there was evidence on the side of the applicant to show on what date he came to know of the decree, then unless that evidence could definitely be rebutted or found to be utterly false the Court must accept that evidence and come to the conclusion that the application was not barred under Article 164 of the Limitation Act, the date of knowledge of the decree being within 30 days from the date of the filing of the application to set aside the decree.
I have given this appeal my careful consideration and in my judgment the appeal ought to be allowed because the summonses were not duly served upon the appellants and their application to set aside the ex parte decree was not barred by time. I would accordingly allow the appeal, set aside the decision of the Subordinate Judge dismissing the applicants' application under Order 9, rule 13, of the Code of Civil Procedure, and allow the said application and set aside the ex parte decree. The suit is accordingly restored to be disposed of according to law. There will be no order for costs in this appeal.
Narayan, J.:— I am in absolute agreement with My Lord, the Chief Justice, in his view that the service of summons that was effected in this case cannot be regarded as proper. My Lord has further found that Ali Hussain Mian and Sisir Chandra Ray had known about the summons and consequently the defendants had knowledge of the suit; The problem which Arises in this case is as to whether the applicants have been able to discharge the on his which may on them, even after it has been established that the persons named above and consequently the defendants must have known of the suit. Undoubtedly, it has, been said in Rajeshwari Prasad Singh v. Brahmanand Lall that the period is to be counted from the date of the knowledge of the decree and not from the date of the knowledge of the suit. This is a Bench decision of this Court and there are some other decisions also in which a similar view was taken. Though, therefore, I had some difficulties in this case on the question of limitation and, in the circumstances, I was not sure whether it will be proper in this case to hold that the onus which lay on the applicants had been discharged, after having read his Lordship's judgment I do not consider it inevitable that I should come to any different conclusion in this particular case. I, therefore, agree to the order proposed by My Lord, the Chief Justice.
S.H
Appeal allowed.