Decided on July 28,1960

NANCHIA Respondents


- (1.)THIS revision has been filed against an appellate order of the learned Addl. Commissioner, Jaipur dated 19. 1. 60. It appears that the applicants filed a suit under sec. 177 Rajasthan Tenancy Act against five persons out of which the opposite party was one. The trial Court issued process against all the defendants including the non-applicant. The summons issued in the name of non-applicant were not personally served but were affixed on his house. The endorsement of the process server was to the effect that the non-applicant was said to have gone to Sanganer and therefore summons were affixed in the presence of the witnesses on his house. Trial court found this to be sufficient service and recorded the evidence of the appli-cants ex parte and eventually also decreed the suit ex parte on 23. 1. 57. The non-applicant made an application on 2. 1. 58 before the trial court in which he stated that service of summons on him was not according to law and that it was for the first time on 1. 12. 57 when the Girdawar Kanungo reached the site to execute the decree that he learnt that an ex parte decree was passed against him. Accordingly he applied for setting aside the ex parte decree. In support of his contention he filed an affidavit also and examined one or two witnesses. The trial court found that the summons were properly served by affixing them on the residence of the non-applicant which was one of the modes prescribed under Order 5 R. 17 CPC. and further that there was no sufficient cause justifying the setting aside of the ex parte decree. Accordingly the application was rejected. In appeal, the learned Addl. Commissioner however, observed that there was no proper service of summons by any of the modes prescribed under the law on the non-applicant. He, therefore, held that as there was no proper service, the ex parte decree be set aside and the case be sent to the lower court for being decided afresh according to law after effecting proper service on the parties. In revision it has been stated that the application filed by the non-applicant was barred by limitation and it should have been rejected on this ground. We will at first examine whether the present application filed by him was within 30 days of the knowledge of the decree as alleged by him. Our finding on the first point is that there was no proper service on the non-applicant. Order 5 of CPC. prescribes three principal modes of serving a summons on a defendant: (1) Under rule 10 read with Rr. 12, 16 and 18 i. e. by delivering or tendering a copy of the summons to the defendant personally or to his duly empowered agent and taking his signature in token of acknowledgment of such service. THIS is the mode of service that should normally be adopted unless it is not possible to do so. (2) Where the summons cannot be served in the above manner by reason of the fact that the defendant refuses to sign the acknowledgment of service or cannot be found or has no agent duly empowered to accept service, it should be affixed to the outer door or other conspicuous part of the defendant's residence under rule 17. (3) Where the summons cannot be served in either of the above two modes, or there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, the Court, may order substituted service under Rule 20 i. e. , by affixing a copy of the summons in the court house and also in some conspicuous part of the defendant's last residence or in such other manner as the court thinks fit. THIS, however, unlike the other, two modes of service, must be done after obtaining the order of the Court therefor.
(2.)BESIDES the three modes of service stated above the Court may in particular cases, direct service of the summons by post.
The only mode of service resorted to was that when the process server reached the house of the non-applicant, he did not find him and therefore it was affixed to the outer door of the defendant's residence. The process was returned with the endorsement that the summons were affixed on the house of the non-applicant who had gone to Sanganer and had since been residing there. This was no service at all and yet the trial court proceeded to hear the case ex parte;. In the present application also the trial court went astray in holding that the summons were properly served. The learned Commissioner, with whom we agree, rightly held that there was no proper service on the non-applicant. But he did not examine whether the application was within time. We have, however, examined this aspect of the case. Article 164 Limitation Act applies for setting aside an ex parte decree under which time runs from the date of the decree or where the summons was not duly served from the date when the non-applicant has got knowledge of the decree. Since we have held that summons were not properly served the period of limitation namely 30 days shall run from the date when the non-applicant learnt about the ex parte decree having been passed against him. In his own application dated 3. 1. 58 filed before the trial court the non-applicant stated that he got knowledge of the exparte decree against him on 1. 12. 57. The period of limitation shall run from this date, namely, 1. 12. 57, and expired on 31. 12. 57. Since the application was made on 2. 1. 58 i. e. after two days beyond the prescribed period of limitation the application was clearly time barred and should have been straightaway rejected by the lower courts on this ground alone. The decisions of the trial court as well as the lower appellate court are therefore not maintainable. In the result we allow this application set a side the order of the lower courts and direct that the application of the non-applicant for setting aside exparte decree shall stand dismissed as being barred by limitation. .


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