1. This is an application in revision which arises out of a suit in the Court of Small Causes at Cawnpore. The relevant facts may shortly be stated as follows : The suit was instituted by the opposite party Jumna Sahai on 13th August 1936. It was a claim for arrears of pay. The 26th August 1936 was fixed by the Court for final hearing. A summons was issued to the defendant, who is the applicant in this Court, on 14th August 1936. The process-server of the Court who was entrusted with the service of the summons proceeded to the applicant's house on 15th August and affixed a copy of the summons to the door of the home. It may be noted here that the process-server himself was not in a position to know where the applicant's house was situated, but he was accompanied by an agent of the opposite party, who pointed out a house to him as the house of the applicant. From the report of the process-server as to the circumstances in which he affixed the summons to the house it appears that he was told by two persons of the locality mimed Har Prasad and Dwarka Prasad that the applicant had gone to the city and was expected to return in the evening. Now the rules laid down in the Civil Procedure Code which should govern the service of a summons upon defendant are to be found in Order 5, Rules 15, 16 and 17. The last named rule, which is relevant to the present case, runs as follows:
Where the defendant or his agent or such other person us aforesaid refuses to sign the acknowledgment or where the serving officer, after using all duo and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person present on whom service can be made the serving officer shall affix a copy of the summon on the outer door...
2. It is clear from this rule that the procedure of affixing a copy of the summons to the outer door of a defendant's house can come into operation only when certain conditions have been fulfilled, one of them being that the serving officer has used all due and reasonable diligence and has yet failed to find the defendant. In the present case it is admitted that no step was taken by the process-server to find the defendant at all, and that he proceeded to affix a copy of the summons to the door of the applicant's house merely upon being told that the applicant had gone out to the city on some business and was expected to return in the evening. It cannot be reasonably suggested, in these circumstances, that the serving officer had used all due and reasonable diligence to find the defendant before affixing a copy of the summons to the door of the applicant's house. On 19th August 1936, the process-server's report was presumably considered by the Court, and the affixation of the summons to the applicant's house in the circumstances mentioned above was held by the Court to be sufficient service. The case was taken up on 26th August 1936 and the applicant being absent, the Court proceeded immediately to pass an ex parte decree against him. It appears that this decree was put into execution and a notice was issued to the applicant to show cause why he should not be arrested and put in civil confinement. This notice was served on the applicant on 29th March 1937. He then made an application on 9th April 1937 for setting aside the ex parte decree passed against him. This application has been rejected by the learned Small Cause Court Judge on the ground that it was barred by time. Hence the present application in revision.
3. It is argued on behalf of the applicant that the lower Court erred in holding that the application for setting aside the final decree was barred by time because the applicant had knowledge of the ex parte decree much more than 30 days before the date on which it was made. The provision in the Limitation Act governing an application by a defendant for an order to set aside a decree passed ex parte is to be found in Article 164 of Schedule 1 to the Act. According to that Article the date from which the 30 days period of limitation begins to run is the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. According to the applicant, he obtained knowledge of the decree Only on 29th March 1937 when a notice was served upon him asking him to show cause why he should not be arrested in execution of the decree. This allegation of the applicant was supported by an affidavit made by him in the lower Court. The argument on his behalf is that limitation began to run in the present case not earlier than 29th March 1937, and hence the application for setting aside the ex parte decree which was made on 9th April 1937 was well within time. It is contended that the applicant is entitled to claim that limitation began to run only from the date on which he obtained knowledge of the decree because the summons of the suit in which the decree was passed was not duly served upon him as required by Order 5, Rule 17. These points were apparently urged by the applicant also in the lower Court, and the order by which the learned Small Cause Court Judge dismissed the application for setting aside the ex parte decree runs as follows:
The applicant was served sufficiently. I am not prepared to believe that he could not get information of the case of the date of hearing for such a long time. The report of the process server shows that the summons was affixed to applicant's house which was open, because he was reported to have gone out into the town. The decree was put into execution and notice of that was also issued to the applicant. I hold that the application is barred by time. I reject it with costs to the opposite party.
4. The applicant's contention is that the learned Small Cause Court Judge had no material before him upon which he could arrive at the conclusion that the applicant had obtained knowledge of the decree long before 29th March 1937, the date fixed by the applicant as the date on which he obtained knowledge of the decree. It is argued that the applicant had definitely stated in his application that he obtained, knowledge of the decree on 29th March 1937 and that allegation was supported by an affidavit which had not been contradicted by the other side. In these circumstances, the learned Small Cause Court Judge was not justified in arriving at the conclusion that the applicant had knowledge of the decree at some prior date without having any material or evidence of any kind to support that conclusion. On behalf of the opposite party it has been argued that the matter was entirely within the discretion of the learned Small Cause Court Judge, and if upon the circumstances of the case he arrived at the conclusion that the applicant must have had knowledge of the decree long before the date fixed by him there can be no reason for interference in revision.
5. Upon a careful consideration of the arguments on beth sides and of the order passed by the learned Small Cause Court Judge, I find that the applicant's contention is sound and must prevail. The summons of the suit in which the ex parte decree was passed was not duly served as required by Order 5, Rule 17. That is to my mind perfectly clear. It necessarily follows that the limitation for an application for setting aside that decree commenced to run only from the date on which the applicant obtained knowledge of the decree. Now the applicant alleged that he obtained knowledge of the decree on 29th March 1937 and supported that allegation by an affidavit which was not contradicted by the other side. In these circumstances, I fail to see how the learned Small Cause Court Judge arrived at the conclusion that the applicant must have had knowledge of the decree long before the date fixed by him. It appears to me that there was a confusion in the mind of the learned Small Cause Court Judge between knowledge of the date of hearing and knowledge of the decree. For the purposes of limitation he had to consider whether the applicant could have had knowledge of the decree before the date fixed by him. As I have stated above, he considered that question and in my opinion, arrived at a conclusion which is not supported by any circumstances or other material on the record. In his order rejecting the application, the learned Small Cause Court Judge has however observed that he was not prepared to believe that the applicant could not get any knowledge of the case or of the date of hearing for such a long time. In view of the fact that the suit was instituted on 13th August 1936 and was fixed for final hearing on 26th August 1936, I find it difficult to understand how the expression 'for such a long time' used by the learned Judge could be justified. In any view of the case, I think that the learned Small Cause Court Judge has exercised his discretion arbitrarily in this case, and his order rejecting the application for setting aside the decree must be set aside. I therefore allow this application in revision and setting aside that order, direct that the suit shall be restored to its original number and shall be heard and decided in accordance with the law. The applicant shall have his costs in this Court.