1. The appellant sued to set aside a sale held in pursuance of a notice under Section 112 of the Madras Estates Land Act alleging irregularity, fraud, etc. We are now concerned only with the allegation that the notice required under Section 112 was not duly served upon the appellant and that therefore the sale was bad.
2. The facts are no longer in dispute. There was only one notice and that was affixed after the process peon had ascertained from the wife of the appellant that he was absent from the village, having gone to another village four days previously, and that it was not known when he would return. The learned District Judge after discussing the various cases under the Civil Procedure Code in which it was held that mere temporary absence does not justify affixture, observes:
That there is no explicit mention of the 'due and reasonable diligence' in Section 112 of the Madras Estates Land Act and it may be admitted that the diligence evidenced by Ex. II would not be accepted by the Court as due and reasonable diligence under Order 5, Rule 17 of the Civil Procedure Code for the purpose of service of summons in a suit.
3. It is true that the words 'due and reasonable diligence' do not appear in Section 112 which lays it down that if personal service cannot be effected service can be effected by affixture. But it seems to me impossible to avoid the conclusion that when the legislature says 'if personal service cannot be effected', it must be taken to mean that it cannot be effected when reasonable attempts have been made to effect it. The Statute certainly cannot require an absolute, theoretical impossibility of personal service as a necessary pre-requisite to affixture; nor can it contemplate a merely technical or purely temporary inability to effect personal service, as justifying affixture. The only reasonable criterion to apply is that which has been expressly laid down with reference to service of notice in the Civil Procedure Code, namely, that there must be reasonable diligence on the part of the process-server before the Court can conclude that service could not be personally made and before the Court will be satisfied that the circumstances justify service by affixture. If so much is granted, it follows that the rulings under the Civil Procedure Code requiring due and reasonable diligence in attempting to effect personal service as a necessary preliminary to a valid service by affixture, will apply equally to service of notice under Section 112 of the Madras Estates Land Act. In view of the finding of the District Judge that in this particular case there has been no such due and reasonable diligence as would satisfy the requirements of the Civil Procedure Code, I must conclude that there has been no such diligence as would satisfy the requirements of Section 112 of the Madras Estates Land Act and that therefore service by affixture was not sufficient intimation of the approaching sale and that the sale is therefore bad. It is pointed out that there is a finding that the appellant was aware of the sale at the time when it actually took place. I am not satisfied that this fact, even if it be true, would be sufficient to validate a sale of which proper notice had not been given.
4. The result therefore is that the appeal is allowed and the plaintiff's suit is decreed so far as his interest in the suit land is concerned with costs throughout as against defendants 1 to 3.