Sharma, J. - (1.) THIS is an application by the defendant in revision against the appellate order of the learned Civil Judge, Bharatpur, and arises under the following circumstances: - The plaintiff Nathulal filed a suit against the applicant Ramsingh for cancellation of a certain sale deed. In that suit summons were issued to the defendant for the 30th November 1948. The summons were returned by the process server with his report dated the 22nd November 1948 to the following effect: - "that he presented the summons before Ramsingh of Ludha-bai, but he returned it after reading it and said that he was living in a village and was not living in Bharatpur City. Therefore, summons should be served on him in the village. " After the receipt of this report the learned Munsif Bharatpur in whose court the suit was pending, made an order for proceeding ex parte against the defendant on the 30th November 1948 and after recording ex parte evidence passed an ex parte decree on the 22nd December 1948. On the 12th March 1949, the defendant made an application under O. 9 R. 13 for setting aside the ex parte decree on the ground that he had not been served with the summons and that he came to know of the ex parte decree for the first time on the 24th February 1949. THIS application was supported by an affidavit. The learned Munsif, in view of the report of the process server, held that the defendant had been informed of the date of hearing of the suit and that his application having been filed 2-1/2 months after the date of the decree, was liable to dismissal. He consequently dismissed the application.
(2.) THE defendant filed an appeal against this order and the learned Civil Judge upheld the order of the first court. THE defendant Ramsingh comes in revision to this court. It was argued by the learned counsel for the applicant that under Rule 17 Or. 5 of the Code of Civil Procedure, where the defendant or his agent. . . . . . . . . . . . . . . . . . refused to sign the acknowledgment or where the serving officer; after using all due and reasonable diligence, cannot find the defendant,. . . . . . . . . . . . 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. If the defendant really refused to accept the summons, the process server ought to have affixed a copy of the summons as provided by rule 17 and should then have made a report as required by that rule. As this procedure was not adopted, the defendant cannot be said to have been duly served with summons, under O. 9 R. 13 of the Code of Civil Procedure, the defendant is entitled to have the ex parte decree set aside if he satisfies the court that the summons was not duly served, as the procedure required by R. 17 was not adopted. It was apparent that the summons was not duly served and so the lower courts should not have dismissed the application on the ground that because the summons was duly served, the application for setting aside the ex parte decree made more than one month after the decree was time barred. On behalf of the plaintiff-opposite party it has been argued that when the defendant refused to accept the summons, the non-affixing of the summons and making a report, as required by R. 17 O. 5 was only an excuse-able irregularity and the ex parte decree should not be set aside on that ground. It was further argued that the finding of the lower court that the service of summons was duly made was a finding of fact and should not be challanged in revision. I have considered the arguments of the learned counsels for both the parties. There can be no doubt that after the defendant refused to accept service, the duty of the process server was to affix a copy of the summons on the outer door or some other conspicuous part of the house, in which the defendant ordinarily resided, or carried on business or personally worked for gain and to make a report as required by R. 17 O. 5. In the absence of this procedure it cannot be said that the summons was duly served. On a careful consideration of the provisions of R. 17 O. 5, I come to the conclusion that the service was not duly made. As the service was not duly made, the defendant was entitled to have the ex parte decree set aside, provided he could satisfy that he came to know about the decree for the first time within a month before the date of the application, the lower courts have not considered the question when the applicant obtained knowledge of the decree for the first time. The question whether the summons was duly served is not a question of fact in the circumstances of the present case, as it is conceded by both the parties that the only step which the process server took was to present the Simmons before the defendant and he took no other step after the defendant refused to accept the summons. The ruling of the Alld. High Court reported in A. I. R. 1933 Alld. 166 (Nathuram vs. . Salim Abdul Karim), on which the lower appellate court has placed reliance and which has been cited by the learned counsel for the opposite party, was given on the phraseology of R. 13 of O. 9. as amended by that court. By the amendment a second proviso has been added to the rule 13, and it reads as follows:- "provided also that no such decree shall be set aside merely on the ground of irregularity in service of summons, if the court is satisfied that the defendant knew, or, but for his wilful conduct, would have known of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim. " No such amendment has been made here. The ruling of the Allahabad High Court, therefore, does not apply so far as it is based upon the wordings of the amendment. The very ruling, however, clearly says that the summons cannot be said to have been duly served if, after the refusal of the defendant to accept service, it is not affixed as provided by Rule 17. To my mind, there has been material irregularity and therefore I shall be justified in interfering in revision with the order of the lower court. The application is allowed, the order of the lower court is set aside and the case is sent back to the 1ower appellate court with a direction that it be decided after a finding whether the defendant had knowledge of the decree for the first time within a month before the date of his application. The lower appellate court shall be entitled to allow the parties to produce any additional evidence, which they might choose in support of their respective cases. The costs of this revision shall abide the result after this remand. . ;