A.N.Varma, J. - (1.) This petition is directed against the concurrent orders passed by the courts below rejecting an application filed by the petitioner's husband Janaki Prasad and his two brothers Kanhaiyalal and Munnalal (respondents 4 and 5) under Order 9, Rule 13 of the Code of Civil Procedure for setting aside an ex parte decree dated 13-5-1977 passed in a suit instituted by Chandrika Prasad the respondent 3 herein. Both the courts below have concurrently found that the summonses of the suit had been duly served on the three defendants, namely, Janki Prasad, Kanhaiyalal and Munnalal. The trial court rejected the application under Order 9, Rule 43 on an additional ground, namely, that even if it be assumed that the service through publication was treated as irregular, the application is liable to be dismissed on the ground that despite the knowledge of the suit while the same was pending, the application for setting aside of the ex parte decree was filed seven months after the passing of the decree.
(2.) Sri R. N. Singh, learned counsel for the petitioner submitted that the courts below have committed a patent illegality in rejecting the defendant's application under Order 9, Rule 13 on the ground that they had been duly served through publication.
(3.) The criticism of the learned counsel was that the courts below were wrong in treating the service of the summons of the suit through publication as sufficient and valid. Learned counsel contended that substituted service by way of publication in newspaper could be ordered by the court only if the court feels satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any reason the summonses cannot be served in the ordinary way. In the present case, learned counsel contended such a contingency did not exist.;