- (1.) THIS revision, which has been erroneously described as an appeal is directed against an appellate order of the Additional Commissioner, Jodhpur, dated 21st December, 1955, whereby he affirmed the order of the Assistant Collector, Bhinmal, dated 22.12.1954, dismissing the application for restoration filed by Ishra.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. The material defects of the case, which are not in dispute, may be briefly stated as fallows. Okha, non-applicant instituted a suit against Ishra and others for recovery of possession of land under item No.10, Group B, Schedule I, of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, on 25-6 1952 in the court of the Assistant Collector Bhinmal. The case was adjourned from time to time in order to enable the defendants to appear in response to the summonses which were issued at the instance of the plaintiff. Ishra appeared before the learned Assistant Collector on 12.11.1952. The case was adjourned to 17.12.1952. It was directed that the remaining defendants be summoned. On that date Isrha and Raj Singh defendants did not appear in the court of the learned Assistant Collector despite service of summonses It appears from the endorsement recorded on the reverse of the summons issued to Ishra that as he could not be found at his usual place of residence the summons was affixed to a conspicuous part of his house in the presence of some of the respectable persons of the village. On 15.1.1953 the learned Assistant Collector directed that proceedings be taken ex parte against Ishra and Raj Singh defendants, as they had not appeared despite service of summons on them. The suit was decreed ex parte on 28.8.53 after recording the evidence of a few witnesses who appeared on behalf of the plaintiff and supported his version of the matter. An application to set aside the ex parte decree was filed before the Assistant Collector on. 28.6.1954. It was dismissed by him on the ground that it was barred by limitation and the applicant had not adduced any sufficient cause why the ex parte decree which was passed against him be set aside. Ishra lodged an appeal before the Additional Commissioner, Jodhpur against the order of the Assistant Collector Bhinmal, dated 22-12-1954 dismissing his application for restoration. The appeal was dismissed by the learned Additional Commissioner on 21 12-1955 on the ground that there was hardly any justification why an application for restoration which was filed after full one year should be allowed. Ishra has come up in revision to the Board impugning the order of the learned Additional Commissioner on the ground that his application for restoration should not have been dismissed as being barred by limitation. The only contention which was raised on behalf of the applicant was based on the words "where the serving officer, after using all due and reasonable diligence, can not find the defendant" which occur in O. 5, R. 17, C.P.C. It was urged that in the present case the serving officer had resorted to substituted service without exercising due and reasonable diligence. He had not made real and substantial effort after proper enquiry to find the defendants. It was incumbent upon him to attend at the right place and time at which he might expect to find the defendant and if he was absent he should have made reasonable enquiries and taken steps to discover where he was. In the absence of any such effort it could not be held that the service was proper. The affixture of summons to the house of Ishra was, therefore, absolutely useless. I his contention is apparently based on an erroneous assumption that there was no proper service as the serving officer had violated the provisions of O. 6, R. 17, C.P.C. It clearly overlooks the fact that under Rule 20 of the Rules framed under the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, a simpler mode of serving summons in prescribed. The relevant portion of the Rule runs as follows - "If he cannot be found or refuses to accept the service of summons by affixing a copy of it to some conspicuous part of his usual residence.'' It is significant to note that the words after using all due and reasonable diligence do not occur in Rule 20. The service effected in the present case cannot, therefore, be criticised on the ground that the serving officer had not made a real and substantial effort to find the defendant. If the service effected on Ishra by affixing a copy of the summons to a conspicuous place of his usual residence was proper the period of limitation as provided in Art. 164 of the Indian Limitation Act would run from the date of the decree and not from the date of the applicant's knowledge of the decree. The application for restoration should have, therefore, been filed by Ishra within 30 days from the date of the decree. The second clause of the Article which provides that where the summons was not duly served a period of limitation would run from the date when the applicant had knowledge of the decree would not, therefore, apply. It may also be pointed out that the court has no power inherent or otherwise to enlarge the period of limitation. Sec. 5 of the Indian limitation Act is not applicable to O. 9 , R. 13, C.P.C. In this case the applicant did not adduce any sufficient cause while he filed an application for restoration after the expiry of a period of about a year and that he could not do so within the prescribed period of 30 days. It would appear from the fact set out above that the application for restoration was rightly dismissed by the learned Assistant Collector because it was hopelessly barred by limitation. The learned Additional Commissioner had also acted properly in upholding his order and dismissing the appeal. The application in revision, which is clearly devoid of merits is, therefore, dismissed. In the results the orders of the courts below are upheld.;