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Gumanmal, Proprietor Sha Chandanmal Gumanmal Vs. Greenfield Co. by Its Proprietor Amritlal C. Shah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2119 of 1963
Judge
Reported inAIR1964Mad372
ActsLimitation Act, 1903 - Schedule - Article 164
AppellantGumanmal, Proprietor Sha Chandanmal Gumanmal
RespondentGreenfield Co. by Its Proprietor Amritlal C. Shah
Advocates:Himmatmal Mardia, Adv.
DispositionRevision dismissed
Cases ReferredNagappa v. Rangaswami
Excerpt:
- - abdul salam, 55 mlj 565: air 1928 mad 815 is relied upon, as well as the decision of ramaswami j......in all such cases will be whether 'substituted service' has been effective, and if it had been effective, limitation under article 164 will run from the date of the decree, and not from the date of knowledge of the decree by the defendant. everything depends upon the totality of the facts of the particular case. in the present case, the court appears to be definitely of the view that the 'substituted service' was not effective, in its judgment, and hence that time will run only from the date of knowledge of the decree. i may point out that there is no magic in the procedure of 'substituted service' per se in determining whether there is 'due service' within the meaning of article 164, or not. facts may vary from case to case, and a service which is effective under one set of.....
Judgment:

Anantanarayanan, J.

1. The only point involved in this proceeding by the plaintiff in the court below, who originally obtained an ex parte decree against the defendant, which decree was ultimately set aside by the learned First Assistant Judge of the City Civil Court, is that the application of the defendant (respondent) was barred under Article 164 of the Limitation Act, because the date of the decree must be held to be the commencement of limitation and not the date when the applicant (respondent) came to have knowledge of the decree. Very simply stated, the argument is that, in the trial, the court ordered 'substituted service' within the meaning of Order 5 rule 20 of the Civil Procedure Code, and that such service was actually effected. Such service is as real and effectual as if it had been made on the defendant personally, in the context of the words 'due service' in Article 164 of the Limitation Act; the authority of the Bench decision in Shariba v. Abdul Salam, 55 MLJ 565: AIR 1928 Mad 815 is relied upon, as well as the decision of Ramaswami J. in Nagappa v. Rangaswami, : AIR1954Mad475 , where the prior case law has been reviewed.

I think it is sufficient to state that, as Ramaswami J. himself has observed in : AIR1954Mad475 , the real question in all such cases will be whether 'substituted service' has been effective, and if it had been effective, limitation under Article 164 will run from the date of the decree, and not from the date of knowledge of the decree by the defendant. Everything depends upon the totality of the facts of the particular case. In the present case, the court appears to be definitely of the view that the 'substituted service' was not effective, in its judgment, and hence that time will run only from the date of knowledge of the decree. I may point out that there is no magic in the procedure of 'substituted service' per se in determining whether there is 'due service' within the meaning of Article 164, or not. Facts may vary from case to case, and a service which is effective under one set of circumstances, may be held to be a mere farce, and not at all effective, upon other facts.

2. If the plaintiff (petitioner) had been prejudiced by the considerable time which elapsed since the ex parte decree, as claimed by his learned counsel, it is always open to the petitioner to urge that these facts should be taken into consideration in awarding costs, if plaintiff is ultimately successful in the suit on the merits. I see no reason to interfere and the civil revision petition is dismissed.


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