Wallace, J - (1.)This petition seeks to have set aside the proceedings of the Subordinate Judge of Dindigul in C.M.A. No. 23 of 1925.
(2.)In O.S. No. 5 of 1923 on the file of the District Munsif of Palani, the plaintiff, the petitioner, obtained an ex parte decree against the three defendants on 13 November, 1923. On the 28 April, 1924, the 1 defendant applied to have it set aside, The District Munsif set it aside. On revision in Duraiswami Iyer V/s. Balasundaram Iyer 94 Ind. Cas. 420 : 23 L.W. 319; A.I.R. 1926 Mad. 558 this Court cancelled that order and sent the case back for re-hearing. At the re-hearing the District Munsif dismissed the application to set aside the ex parte decree, and on appeal the Subordinate Judge reversed that order and allowed the application, and the present petitioner brings this civil revision petition.
(3.)There were three defendants in the suit a father and two sons undivided. The 2nd defendant was personally served. The petition to set aside the decree was put in only by the 1 defendant. He was served by substituted service. One of the questions the District Munsif had to decide, and which he did not in the first instance decide was whether the 1 defendant was duly served within the meaning of Order IX, Rule 13, Civil Procedure Code and Art. 164 of the Indian Limitation Act At the re-hearing the District Munsif decided that there had been due service of summons; the Subordinate Judge differed and decided that there had not; and the short point at issue is whether the Subordinate Judge erred in law or jurisdiction in so doing.