1. The defendants in the suit are the appellants in C. M. A. No. 187 of 1972 and the petitioners in C. R. P. No. 1055 of 1972. The suit was filed against the defendants for recovery of a sum of Rs. 11,471-56 on two heads i.e., one on a pronote and another on dealing. On 27-2-1971 an ex parte decree has been passed. On 3-9-1971, the defendants were served with notice in the execution petition. After coming to know of the execution petition the defendants on 4-9-1971 filed two interlocutory application I. A. No. 1909 of 1971 for the purpose of excusing the delay in filing the application for setting aside the ex parte decree, and I. A. No. 1910 of 1971 for setting aside the ex parte decree dated 27-2-1971. The trial Court dismissed both these applications. The defendants have filed C. M. A. 187 of 1972 against the decision in I. A. 1910 of 1971 and C. R. P. No. 1055 of 1972 against the decision in I. A. 1909 of 1971.
2. Mr. Narayanaswami learned counsel for the appellants and the petitioners respectively in the abovesaid cases submitted that as per Art. 123 of the Limitation Act, the time to file the petition to set aside the ex parte decree will run only from the date of knowledge of the decree. He is also aware that if the summons have been duly served, the time will run from the date of the decree. Hence Mr. Narayanaswami has submitted that the summons were not duly served inasmuch as the plaint copy was not attached to the summons. He cited the decision in Gyanammal v. Abdul Hussain Sahib, 61 MLJ 920 AIR 1931 Mad 813. In that decision a Bench of our High Court dealing with the service of summons duly upon the defendant has observed that the defendant can dispute the due service on the ground that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served he was not provided with the knowledge of the claim against him, which is the object of the service. It is further stated in the said decision that even if the defendant is served personally it is open to him to come to the court and show that (sic) was not really due service because it did not really give him knowledge of the claim against him.
3. As far as the present case is concerned, the defendants have specifically raised the plea stating that they were not served with a copy of the plaint. The lower Court has failed to consider this point except stating that the defendants had knowledge of the suit. Mere knowledge of the suit is not enough to disentitle the defendants from filing a petition to set aside the ex parte decree beyond a period of 30 days from the date of the decree. The essential requirement is that the defendants must be aware of the date of the decree if the summons were not duly served upon them. No doubt, Mr. Narayanaswami has further contended that due to the fraud practiced by the plaintiffs they did not take serious note of the alleged suit. This he states, on the ground that the defendants thought that a suit has been filed only on a promissory note inasmuch as Ex. B-3 the suit notice dated 23-10-1969 mentions only the money due on the pronote, but unfortunately the suit is not only based upon the promissory note but also certain dealings. This according to the defendants is not a bona fide claim. But I do not think that that point has any relevancy for the present case and it is unnecessary for me to deal with the same since that will not from a ground for setting aside the ex parte decree.
4. In the decision in Pichaiammal v. Vellayya : AIR1963Mad198 it is held--
'Art. 164 of the Limitation Act provides for a period of 30 days for an application to set aside an ex parte decree. Time will begin to run from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. In the present case the concurrent finding of both the courts below is that the first defendant deliberately refused to receive summons. It would follow that he had constructive notice of the contents of the registered cover which was tendered to him by the postman that is to say, he had knowledge of the date of the hearing of the suit. Knowledge of the date of hearing of the suit does not necessarily mean knowledge of the fact that a decree had been passed on that date or subsequent to that date. For the application of Art. 164 of the Limitation Act, it is necessary to ascertain when the defendant applying for setting aside the ex parte decree had knowledge of the decree. Mere knowledge of the date of the suit would not be enough for that purpose.............'
Thus, it s clear from the abovesaid decision that if the defendants are able to establish that the notice has not been duly served, it is enough that they file a petition to set aside the ex parte decree within thirty days from the date of the knowledge of the passing of the decree. In this case, according to the defendants they came to know of the passing of the decree only when the notice of the execution petition was served upon them on 3-9-1971. The trial Court, on the basis of service of summons and also observing that the defendants were aware of the suit being filed dismissed both the applications filed by them. But the decision in : AIR1963Mad198 is a very clear authority for the proposition that when notice is not duly served the defendant against whom an ex parte decree has been passed is entitled to file a petition to set aside the ex parte decree within 30 days from the date of knowledge regarding the decree passed against him. The corresponding Article in the present Limitation Act for Art. 164 is Article 123. The wordings are the same in both these Articles. I am satisfied that the defendants have correctly proved that the notice has not been duly served inasmuch as the plaint copy has not been sent along with the notice. It complies with the observations contained in the decision in 61 MLJ 920 AIR 1931 Mad 813 where in this court has stated certain circumstances to show that the notice has not been duly served. Article 124 contemplates only due service of notice. In view of the fact that there was no due service of notice the petition filed immediately after they came to know of the passing of the ex parte decree is within time. The trial Court has failed to exercise its jurisdiction inasmuch as it has completely ignored the provisions contained and the interpretation of Art. 123 of the Limitation Act. In these circumstances C. R. P. 1055 of 1972 is allowed.
5. Mr. Sivamani, learned counsel for the appellants in C. M. A. 187 of 1972 now brings to my notice that an appeal C. M. A. 9 of 1972 was filed against the decision in I. A. No. 1910 of 1971 before the District Judge of Coimbatore East, at Erode and the same was dismissed on 21-4-1972. I find from that judgment that the District Judge has not considered the points which I have discussed in the paragraphs supra. Whatever it might be the District Court had no jurisdiction to entertain the C. M. A., and as such the judgment and decree passed by the District Judge have to be construed as null and void. In any event even assuming that the District Judge has the appellate power the present C. M. A. can be converted as a civil revision petition and the same can be disposed of. In the interests of justice. I do not think that there is any need to technically convert the C. M. A. into C. R. P. inasmuch as the order passed by the District Judge of Coimbatore East, at Erode in C. M. A. 9 of 1972 was without jurisdiction. In these circumstances, and for the reasons mentioned in the paragraph supra. C. M. A. No. 187 of 1972 is allowed.
6. The result is that the ex parte decree passed in O. S. 28 of 1971 is set aside and the suit will be restored to the file of Sub-Court. Erode and will be disposed of afresh according to law. There will be no order as to costs.
7. Appeal allowed.