Bapna, J. - (1.) THIS is a second appeal in a suit for declaration that a certain decree obtained by Rampertab respondent on 28th April, 1951, was void, as having been obtained by fraud, the fraud alleged was that although the defendant was at Khori at the time, the plaintiff did not get the summons served at that place, but moved the court for service of summons by publishing in the newspaper of Kotah. The defendant contested the suit, The learned Civil Judge of Kotah by judgment dated 21st January, 1956, held that no fraud had been committed in the matter of service of summons, and dismissed the suit. The same judgment was upheld on appeal.
(2.) IN this second appeal it is argued by learned counsel for the appellant that the substituted service had not been properly effected. The observation in the judgment of the trial court is that the present plaintiff, who was defendant in the earlier suit, was a resident of Kotah, Mohalla Rampura. When the first summons was issued, he was not served. The plaintiff thereupon informed the court that the defendant had gone to Khori near Shahpura in Jaipur District, and summons was issued on that address. The report of the process-server was that the defendant was not at Khori, and was reported to have gone to Jaipur. Rampertab, thereafter, made an application that the defendant was evading service, and it should be effected by publication in a newspaper. The court acceded to the request, and the summons was published in a newspaper. The court held the service to be sufficient, and as the defendant did not appear, it proceeded ex parte and decreed the suit, which was for the recovery of Rs. 110/-, on 25th April, 1953. Bhairon Lal, who was defendant in the earlier suit, filed the present suit for setting aside the decree on the ground of fraud, the fraud being a stated earlier. Learned counsel contended that the fraud had been committed because the service was not effected and relied on Rameshwar vs. Din Dayal (1 ). That case is distinguishable, for in the Allahabad case a fictitious report had been obtained by the plaintiff in the earlier suit. The report was that the summons was tendered, but refused. The defendant, who brought the suit for cancellation of the decree, proved that the summons had not been tendered to him. The plaintiff, in the present case, has failed to prove that the report of the process-server was erroneous, and that that error had been brought about by anything done by the defendant in the present suit. The mere fact that the earlier case proceeded on substituted service is no ground for holding that fraud had been committed. As observed by the two courts, the defendant in the earlier suit was a resident of Kotah. Attempt was made for service at Kotah, but he had left the place. Another attempt was made for service at Khori where he had gone. This was not successful, and the plaintiff of the earlier suit had no means of knowledge of the whereabouts of the defendant. O. V, r. 20, of the Code of Civil Procedure permits substituted service in two classes of cases, viz.- (1) Where the defendant is keeping out of the way for the purpose of avoiding service. (2) For any other reason the summons cannot be served in the ordinary way. The facts found by the lower court clearly bring the case within the second class, if not in the first although the finding is that the case came within the first class also. In any view of the case, no fraud has been shown to have been committed by the respondent in obtaining the decree. There is no force in this appeal. It is accordingly dismissed in limine. .;