R. Singh, J. - (1.) THIS is an application in revision against an order of the Munsif of Hardoi setting aside an ex -parte decree.
(2.) IT appears that a suit was instituted by the applicant on the 5th August, 1947, for possession of some grove. The Defendant could not be served and substituted service by publication of the summons in a newspaper and by beat of drum was ordered. The Defendant did not turn up and the suit was decreed ex -parte on the 27th February, 1948. The decree was put into execution and the applicant obtained possession of the grove on the 14th May, 1948. On the 22nd December, 1948, an application was made by the Defendant for the setting aside of the ex parte decree and notice of this application was sent to the Plaintiff. The process server went to the house of the Plaintiff applicant on the 13th January, 1949, and his endorsement shows that the Plaintiff had gone to Hardoi and as there was no adult male member present to receive the summons it was affixed on the outer door of the Plaintiff's house which was occupied. This service was taken by the learned Munsif as sufficient and when the application for setting aside the ex -parte decree came up for hearing it was allowed and the ex -parte decree was set aside. It is against this order that the applicant has now come up in revision. The learned Counsel for the applicant urges that the learned. Munsif should not have taken the service of notice on the applicant as sufficient as the applicant was not at his residence on the date when the process server went to serve the notice. Order 5, Rule 17 of the Code of Civil Procedure lays down the procedure which should be observed by process -servers if a Defendant is not found at his residence. It is provided that if the Defendant is not found, and there is no other person on whom service could be made, the serving officer should affix a copy of the summons on the outer door of the house in which the Defendant ordinarily resides. Order 5, Rule 19 of the Code of Civil Procedure lays down the directions far the acceptance of the service as sufficient. According to Order v. Rule 19 it is open to a Court to accept such service as sufficient. If, therefore, the learned Munsif accepted the service of the applicant as sufficient, it cannot be argued that he exercised a jurisdiction not vested in him or acted with material irregularity in the exercise of his jurisdiction.
(3.) SOME distinction has been made in the law between an order setting aside an ex -parte decree and an order refusing to set aside an ex -parte decree. An appeal has been provided against an order refusing to set aside a decree, but no appeal has been provided against an order setting aside an ex -parte decree and the reason for this distinction is obvious. No harm would ordinarily be done to the Plaintiff if an ex -parte decree is set aside and the case is reheard while irreparable injury may result if an ex -parte decree is allowed to stand and no opportunity is given to the Defendant to be heard.;