1. This is a revision petition filed against the order of the learned District Munsif, Siddipet dated 27th July 1977 and made in G. F.R.No, 1238/76 in O. S, No.66 of 1976.
2. The facts are that the petitioner filed a petition for setting aside an ex parte decree dated 8-3-1976 and filed an affidavit in support of the same. The office took an objection that there was delay in filing the petition and there fore, a separate application should be filed for condoning the delay and the petition was rejected The advocate represented the papers stating.
'This petition is being filed from the date of knowledge of passing of the decree which is stated in the affidavit, as such no petition is necessary to condone the delay.'
As a petition for condoning the delay was not filed, the papers were placed before the Court for orders. Thereafter, the Court passed the order under revision The Court heard the counsel for the petitioner and held that the petition cannot be admitted as it is barred by limitation. Therefore, the court rejected the petition
3. The learned counsel for the petitioner submitted that the period of limitation has to be counted from the date of knowledge of the decree and that it is alleged in the petition that the petitioner had the knowledge of the decree on 18-6-1977 and from that date, the petition was died within 30 days, under Art, 123 of the Limitation Act. It was stated in the affidavit that for the first time, he came to know of passing of the decree when he went to the District Munsif's Court, Medak in connection with the suit pending against him in the said Court on 18-6-1977, No notice was issued to the other side on this petition and no evidence was recorded in the case But the learned Judge proceeded on the ground that summons was affixed on the doors of the petitioner defendant and has held that it was sufficient service on the petitioner. When he service of notice is sufficient, the petition has to be filed within 30 days tom the date of the decree. Article 123 of the Limitation Act reads:
The learned Munsif proceeded on the ground that as a notice was duly served on the petitioner, the knowledge of the decree of the petitioner at a subsequent date cannot be taken into consideration The allegation of the petitioner was that he did not receive any summons at all But the endorsement of the process server which is also noted by the learned Judge in his order indicates that when he went to serve the summons, to the house of the defendant, he was not found in the house but went to Hyderabad. Therefore, the summons was affixed to the house of the defendant. The process server has not taken any steps to serve the defendant in person at all. He has not complied with the procedure laid down under O. 5, R. 17, C.P.C. which clearly provides that 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, ii any, by whom the house was identified and in whose presence the copy was affixed.
4. It is found in this ease that when he went far the first time to the house of the defendant he found that he was not in the house and went to Hyderabad. It was his duty to have tried to find out the defendant and serve the summons. The procedure prescribes, '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 formed at the residence within a reasonable time' then only he shall affix the summons on the outer door. When he goes for the first time to his house and if he is not found in the house, he has to make efforts as to when he would be available next time and must try to serve on him.
5. In this case, it is very clear that the endorsement made by him indicates that he has not followed the procedure laid down under O. 5, Il. 17, C.P.C.and the lower Court, ignoring the procedure laid down, accepted that there was a due service on the defendant and on that basis the lower Court proceeded with the case. The defendant in his affidavit stated that he never knew that there was a suit filed against him and that he was not aware of any of the proceedings. It was necessary for the lower Court to have given notice to the other side and after recording the evidence, if necessary then only the Court ought to have decided the case on merits, But the lower Court has not chosen to adopt this course and rejected the petition stating that it is barred by limitation. The lower Court has acted illegally and with material irregularity in exercise of its jurisdiction. Therefore, the order of the lower Court is liable to be set aside.
6. In the result, the revision petition is allowed and the order of the lower Court is set aside. The lower Court is directed to number the petition and after notice to the respondent, decide the petition on merits. There will be no order as to costs,
7. Petition allowed.