1. The appellant, in this case, applied to have an ex parte decree against him set aside. His application was put in more: than a year after the date of the decree. Several ineffective attempts had been made to serve him with summons and ultimately substituted service was ordered and effected. He did not appear and a decree was passed against him ex parte. The Subordinate Judge dismissed his application as time-barred under Article 164 of the Limitation Act. We have been asked in appeal to refer the question at issue, that is to say whether substituted service is due service, to a Full Bench, on the ground of a supposed difference of opinion between two Benches of this Court. The decision of one is to be found in Shariba Beebi v. Abdul Salam I.L.R. (1927) 51 M. 860 : 55 M.L.J. 565, the other in Gyanammal v. Abdul Hussain Sahib : AIR1931Mad813 . In the first case an ex parte. decree passed after substituted service on the defendant was set aside. In revision the High Court reversed the order of the Lower Court and remanded the matter for a decision on the allegation by the respondent that substituted service had not been properly effected. In the second case, the appellant had been served by substitution as the respondent in an appeal and the appeal was allowed ex parte. She applied to have the decree set aside, but her application was dismissed. The High Court reversed the order of the Lower Court and gave the appellant an opportunity of proving that substituted service had not been properly effected. The circumstances of the two cases are different, no doubt, but the result in both was the same--the aggrieved party was given an opportunity of proving that substituted service had not been properly effected, that, in other words, there had been no due service.
2. The truth appears to be that what the Judges were dissenting from in Gyanammal v. Abdul Hussain Sahib : AIR1931Mad813 was a very extreme argument put forward by Mr. K. P. Ramakrishna Aiyar, which, he contended, was justified by the decision in Shariba Beebi v. Abdul Salami I.L.R. (1927) 51 Mad. 860 : 55 M.L.J. 565 It was that substituted service necessarily is due service which can never be contested by the judgment-debtor at a later date. Shariba Beebi v. Abdul Salam I.L.R. (1927) 51 Mad. 860 : 55 M.L.J. 565 is, of course, no authority for such a contention; for, in it, the judgment-debtor was given an opportunity of proving that he had not been duly served. In the case we are now dealing with, the opposite extreme is being put forward and the decision in Gyanammal v. Abdul Hussain Sahib : AIR1931Mad813 is cited in support of it. It is that substituted service is necessarily not due service. Gyanammal v. Abdul Hussain Sahib : AIR1931Mad813 lends no support to such an argument. Anantakrishna Aiyar, J., pointed out that there are circumstances under which 'there is no difficulty in treating substituted service as due service.'
3. This being so, we see no reason to make a' reference to a Full Bench. The first case does not decide that substituted service is necessarily due service nor does the second decide that it is necessarily not due service. Each was remanded in order to give the party an opportunity of proving that there had not been due service. On the merits of this particular appeal, we think it clear that all of the defendants, including the appellant, deliberately evaded service of summons and that substituted service was properly asked for, granted and effected, in other words that there was due service. The appellant should therefore have applied within 30 days of the decree and his appeal is dismissed with costs.