1. This petition seeks to have set aside the proceedings of the Subordinate Judge of Dindigul in C.M.A. No. 23 of 1925.
2. In O.S. No. 5 of 1923 on the file of the District Munsif of Palani the plaintiff, the petitioner obtained an ex parte decree against the three defendants on 13th November, 1923, On 28th April, 1924 the 1st defendant applied to have it set aside. The District Munsif set it aside. On revision in C.R.P. No. 745 of 1924 this Court cancelled that order and sent the case back for re-hearing. At the re-hearing the District Munsif dismissed the application to set aside the ex parte decree, and on appeal the Subordinate Judge reversed that order and allowed the application, and present petitioner brings this Civil Revision petition.
3. There were three defendants in the suit, a father and two sons undivided. The 2nd defendant was personally served. The petition to set aside the decree was put in only by the 1st defendant. He was served by substituted service. One of the questions the District Munsif had to decide, and which he did not in the first instance decide, was whether the 1st defendant was duly served within the meaning of Order 9, Rule 13, C.P.C. and Article 164 of the Indin Limitation Act. At the re-hearing the District Munsif decided that there had been due service of summons; the Subordinate Judge differed and decided that there had not; and the short point at issue is whether the Subordinate Judge erred in law or jurisdiction in so doing.
4. That the word 'duly' is not equivalent to 'personally' is obvious. If the legislature had meant 'personally served' it would have said so. Now the advisability of effecting service by substituted service is a matter primarily for the trial Court alone under Order 5, Rule 20. If the trial Court is satisfied on the matters set out in that section, it shall order the summons to be served by substituted service, and such service by order of the Court is as effectual as if it had been made on a defend ant personally. Now the Subordinate Judge has gone into the question whether substituted service ought to have been issued by the trial Court at all. That seems to me a matter into' which it had no jurisdiction to go unless the Lower Court had made some error of law or had not obeyed the provisions of the Code. The only points open to the Lower Appellate Court to consider under Order 9, Rule 13, are whether the summons was duly, that is, legally served and whether the 1st defendant was prevented by sufficient cause from not appearing. The Lower Appellate Court however has gone into the question whether substituted service ought to have been issued at all and thinks that a summons ought to have been issued to Kotagiri, which it assumes to have been (the 1st defendant's permanent residence because it is stated in the plaint as one of the two addresses of the 1st defendant. It holds that the service therefore was insufficient, and then it goes into the question of fact as to whether the 1st defendant was keeping out of the way and remarks that there is no evidence thereon, although in this proceeding it is difficult to see how evidence could properly have been called on that point. All this would have been very relevant if the application for substituted service was before the Subordinate Judge himself, but it does not appear to me to be within his jurisdiction on appeal to consider whether the District Munsif's order for substituted service was on sufficient or insufficient grounds. He had only to see whether it was issued according to law and whether the District Munsif was satisfied that the conditions required by Order 5, Rule 20 were fulfilled; if so, then the order was legally made. The plaintiff had taken out three notices to the 1st defendant to one of his addresses, namely, the house of his undivided son, the second defendant, and a further notice to the first defendant's solicitor in Ootacamund who had acted on his behalf in the matter of a reply notice to the plaintiff's suit notice, all this without result. On these facts it was impossible to hold that the trial Court was not acting judicially in considering that the conditions of Order 5, Rule 20 were present and in being satisfied that this was a proper case for substituted service. If the trial Court was judicially satisfied that these conditions were present, it appears to me not open to the Lower Appellate Court to hold in effect that the trial Court was not so satisfied or ought not to have been so satisfied. Order 5, Rule 20 leaves the matter to the discretion of the trial Court. The Lower Appellate Court over-rides the District Munsif not because he did not comply with the provisions of the Code, but because it iteslf is not satisfied that the 1st defendant was keeping out of the way. That appears to me to be a wholly erroneous point of view.
5. There is a further difficulty in this case. The 1st defendant died on 8th May, 1924, three months before the first order of the District Munsif was passed. The question arises whether the 1st defendant's application can after his death be prosecuted by defendants 2 and 3. Respondent called Section 146 in aid, but that does not in terms help because it refers only to taking proceedings or making an application and not to continuing a proceeding or an application already started. The petitioner refers me to a judgment of this Court in O.S. No. 79 of 1925 reported in Palaniappa Chettiar v. Valliammai Achi : AIR1927Mad184 . in which it was held that an execution application cannot be continued by the legal representatives of the original applicant. But that Judgment proceeded on the wording of Rule 12 of Order 22 which specifically says that Rules 3 and 4 of that order shall not apply to execution proceedings. However, even supposing for the sake of argument that an application to set aside an ex parte decree can be continued by a legal representative, it appears to me that in most cases it would be a futile proceeding. Where, as in this case, the application has not been put in within 30 days of the date of the decree and the applicant has not been examined on his application, then what has to be proved is that the applicant only came to know of the decree within 30 days of the application and the onus lies upon him. It is not possible for legal pepresentatives to prove, when an applicant came to know of the decree. Only the applicant himself can prove the extent of his knowledge or ignorance, and the mere affidavit of the 1st defendant, who is dead, and who has not been subjected to cross-examination does not appear to me to be evidence admissible under either Section 32 or 33 of the Indian Evidence Act. There is therefore no evidence possible upon which the Court can continue the prosecution of the application before it.
6. A further point is that the Lower Appellate Court has also set aside the decree as against defendants 2 and 3 who did not apply to have it set aside. No doubt Order 9, Rule 13 proviso gives it that power. But it has given no reasons for so acting, and reasons are particularly necessary in a case where the application is now being prosecuted by a defendant who had himself been personally served and had not chosen to appear. Nor does this appear to be a case in which the decree could not be set aside against the 1st defendant only. It was a suit for recovery of lands. The records of the suit itself are not before me, but there seems to be no prima facie reason why the decree should have been set aside as against the shares of defendants 2 and 3 who did not apply to have it set aside.
7. I am of opinion therefore that the Subordinate Judge has gravely erred in his view of the law in his order under revision. I must set it aside and restore the order of the District Munsif with costs throughout to,the petitioner, with costs of private printing also.