1. The revision petitioner (the fifth defendant) and her son (sixth defendant) were impleaded as legal representatives of the second defendant in the suit. They were served by 'substituted service ' and the suit was decreed on 18-3-1966 ex parte against them. The fifth defendant moved the first Court and the appellate court unsuccessfully to set aside the ex parte decree.
2. The enquiry under R. 13 of O. 9 of the C. P. C. touches the following two questions; (1) whether the summons was duly served and (2) whether the defendant was prevented by sufficient cause at the 'hearing'. The language in R. 13 of O.9 of the C. P. C. gave rise to a serious conflict and divergence of judicial opinion ever since 1926. This Court, however, in a way reconciled the divergence in Full Bench judgement in Shamuki v. Venkatarami Reddy, 1956 Andh LT 194 : (AIR 1957 Andh Pra 1). The view of Reilly,J. in Gyanammal v. Abdul Hussain, ILR 55 Mad 223 ; (AIR 1931 Mad 813) as to 'the cardinal principle of our administration of civil justice that no decree shall be made against a party behind his back' was reconciled holding the Court is to be 'satisfied' before a decree is set aside whether the defendant had knowledge of proceedings, whether the defendant 'avoided' the proceedings and also whether the defendant was prevented by sufficient cause at the 'hearing' of the suit. It is not necessary to delve in all the aspects: the Parliament (sic) Limitation Act (Act XXXVI) of 1963) added the following explanation in Article 123.
'For the purpose of this article substituted service under R. 20 of O.V of the C. P.C., 1908 shall not be deemed to be due service' and a proviso is also found added to O. 9, R. 13 of the Civil P. C.'Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.'
3. The Courts found that the Process Sever in the 'return' reported that the sixth defendant and the fifth defendant were 'living' in one house at Kuchipudi. The sixth defendant in the suit filed a written statement after 'summons were effected by substituted service'. The other defendants who had 'hotly contested' the suit were all from the village Kuchipadi. The inference was that the fifth defendant in such circumstances had 'knowledge' and failed to appear before the court on 18-3-1966 of her volition.
4. Sri. M. Venkata Rao, the learned counsel for the petitioner contended that the Process-Server in the enquiry was not examined. The 'return' made by him even otherwise was not conclusive of the facts contained in the report and reliance is placed on the case of Ellappa Naicker v. Arumuga servai, : AIR1967Mad5 . The sixth defendant file a written statement and it is argued that that circumstance is irrelevant of the question whether the fifth defendant had knowledge of the institution of the suit.
5. The contents of the written statement may be irrelevant as contended by the learned counsel but not the fact of filing the written statement on the facts of the case when mother and son were living together. The fact coupled with the circumstance that other defendants were the residents of Kutchipadi do lead the inference drawn against the revision petitioner.
6. The revision petition fails and, is dismissed but no costs.
7. Petition dismissed.