K.B. Narasimha Chettiar vs K.P. Balakrishna Chetty on 7 December, 1926

Last Updated on

Madras High Court
K.B. Narasimha Chettiar vs K.P. Balakrishna Chetty on 7 December, 1926
Equivalent citations: 101 Ind Cas 651, (1927) 52 MLJ 512
Author: M Nair


Madhavan Nair, J.

1. The question for decision, in this Civil Revision Petition is whether the respondent’s application” to set aside the ex parte decree in S.C.S. No. 296 of 1925 on the file of the Court of the District Munsif of Karur is barred by limitation. The decree was passed on the 19th of July, 1926. Article 164 of the Limitation Act prescribes 30 days for an application of this nature and time begins to run from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. The respondent’s case is that the summons was not duly served upon him’ and that he came to know of the decree about 15 days before he made this application. In order to succeed in this application, it is clear that the respondent must prove these necessary facts.

2. In this case the learned Judge who passed the ex parte decree after satisfying himself that there was reason to believe that the respondent was keeping out of the way from service had ordered that substituted service should be served upon him as presented by Order 5, Rule 20 of the Civil Procedure Code. The question is whether in the case of substituted service, it can be said that summons is “duly served” on the defendant within the meaning of Article 164 of the Limitation Act. In one part of his judgment, the learned Judge seems to lay down the proposition that the petitioner cannot be said to have been duly served as summons was not personally served on him, though later on he modified this view by stating that
if there is evidence to show that the defendant evaded service of process wantonly or with a view to delay a creditor substituted service may’ be considered to be due service under the Limitation Act, but if there is no evidence of that kind it is not safe to presume that there was due service under Art 164 of the Limitation Act especially where the process-server’s endorsements are notoriously unreliable.

3. I think, it is clear, that in the case of substituted service, summons is duly served for the purpose of Article 164 even though it does not in fact come to the defendant’s knowledge and that time runs from the date of decree see Dittu Ram v. Nawab (1925) 7 Lah L J 448. 1. The Court after considering the circumstances brought to its notice by the plaintiff directed that substituted service should be effected upon the respondent. Order 5, Rule 20, Sub-rule (2) states that service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. If the defendant avers that the order for substituted service was obtained by the plaintiff in an improper or fraudulent way, it is for him to prove it by giving evidence on that point. No such evidence has been given by the defendant in (his case. He has not examined any witness. The facts show that two attempts at personal service were made and the respondent’s pleader also sent a notice to the petitioner by registered post«as ordered by the Court and this was returned with a note by the postman that the addressee refused to receive it. It is thus evident from the records that application for substituted service was made and the order was obtained by the plaintiff after genuine attempts at personal service had failed and after the Court was satisfied that the defendant was evading the service of summons. There is no justification for the District Munsif’s general remark that the process server’s endorsements are notoriously unreliable.

4. In these circumstances I am satisfied that the summons was duly served in this case and as the respondent’s application was not made within 30 days from the date of the decree, it is clearly barred by limitation under Article 164 of the Limitation Act.

5. I therefore set aside the order of the Lower Court with the petitioner’s costs here and in the Court below.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *