- (1.) This revision petition is directed against the order of the trial Court whereby the petitioner's application for setting (aside the ex parte proceedings was dismissed.
(2.) The husband respondent filed an application under section 13 of the Hindu Marriage Act for a decree of divorce on 2nd November 1979. Notice of this application was issued to the wife petitioner for 9th of January, 1980. It was reported by the process server that the petitioner wife) has refused to accept service. On the basis of this report, the Court ordered that she be proceeded against ex parte. The process- server has come into the witness box. He has not stated anywhere that, after the refusal by the wife, he affixed the copy of the summons on the address given therein. Order 5, rule 17 of the Code of Civil Procedure provides as under:- "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, where the serving officer, after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on 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 works 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."
(3.) From the report of the process 'server as well as his statement in the Court, it is quite clear that no copy of the summons was affixed on the outer door of the house in which the defendant ordinarily resides. Under these circumstances, it was no service in the eye of law on which the petitioner could be proceeded against ex parte. The learned Additional District Judge has acted illegally and with material irregularity in the exercise of his jurisdiction in refusing to set aside the ex parte proceedings. Consequently, this petition succeeds, the order of the trial court dated 19th March, 1980, is set aside and the application of the petitioner for setting aside the ex parte proceedings is allowed with no order is to costs.;