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Nagappa Chowdry and anr. Vs. Rangaswami Chetti - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 795 of 1950
Judge
Reported inAIR1954Mad475
ActsLimitation Act, 1908 - Schedule - Articles 164 and 166; Code of Civil Procedure (CPC) , 1908 - Order 5, Rule 20 and 20(2)
AppellantNagappa Chowdry and anr.
RespondentRangaswami Chetti
Appellant AdvocateR. Thirumalaiswami Naidu, Adv.
Respondent AdvocateP.S. Kothandapani, Adv.
DispositionRevision petition dismissed
Cases ReferredMohanlal Goenka v. Benoy Kishna Mukherjee
Excerpt:
limitation - summons - articles 164 and 166 of schedule to limitation act, 1908 and order 5 rules 20 and 20 (2) of code of civil procedure, 1908 - under article 164 time runs from date of decree or where summons not served from date of knowledge of decree by applicant - period of limitation would start from date of knowledge only where summons not duly served - where summons duly served date of applicant's knowledge of decree immaterial and time to run from date of decree. - - the court being satisfied that there was evasion ordered substituted service......when the applicant had knowledge of the decree. it will be noted that time will run from the date of knowledge only where the summons is not duly served. where the summons is duly served the date of the applicant's knowledge of the decree is immaterial, and time will run from the date of the decree. -- 'shah shantilal & co v. shibor walla' : air1950mad282 (a), -- 'subramania iyer v. krishnaswami naidu', 108 ind cas 753 (mad) (b); -- 'doraiswami iyer v. bala sundaram', air 1926 mad 558 (c); --'sanka aiyar v. subbiah iyar', 13 ind cas 642 (mad) (d). -- 'baldeo das v. shub chum das goenka', : air1926cal327 (e), -- 'ghashiram baluram v. misrilal chinnilal', : air1925bom444 (f), -- 'harcharan v. md. azizullah', air 1932 oudh 326 (g).4. the question therefore is as to when the summons.....
Judgment:

Ramaswami, J.

1. This is a civil revision petition which has been filed against the order of the learned Judge of the Court of Small Causes, Madras, in M. P. No. 8136 of 1949 in suit No. 3174 of 1948.

2. The facts are: Nagappa Chowdry and Natesa Chowdry executed a promissory note for Rs. 600 on 1st June 1947 in favour of one Govindammal. This Govindammal assigned that promissory note for valuable consideration on 27th January 1948 in favour of the plaintiff Rangaswami Chetti. On the foot of that promissory note he filed a suit and the following step was taken. The return Ex. P. 4 states that the ladies in the house Informed the serving officer that the defendants who are residents of Kannampalayam village had gone to Madavakkam, two miles away, and it was not known when they would be coming back and therefore the summons were affixed on the outer-door of the house. Then the court ordered fresh summons by registered post and the registered covers were returned with the endorsement that the addressees were not found in the house to which the covers were addressed. The plaintiff applied for substituted service on the ground that the defendants were evading service. The Court being satisfied that there was evasion ordered substituted service. Publication was made in Dhinamani and there was affixture on the court notice board. The defendants were absent on the final date of hearing 2nd November 1948 & an ex parte decree was passed. The decree-holder took out execution proceedings. On 25th September 1949 he attached the lands of the judgment-debtors at Melapakkam. Thereupon the defendants have come forward with this petition to set aside the ex-parte decree on the ground that they had not been duly served and that therefore they had sufficient cause to be absent on the final date of hearing and that they had come to Court within 30 days of their having knowledge of the decree. The learned Small Cause Judge held that there had been due service and secondly, that these applicants should have come within 30 days from the date of the decree and therefore he dismissed the application. Hence this civil revision petition.

3. 'Under Article 164 of the Indian Limitation Act, time runs from the date of the decree or where the summons was not duly served, when the applicant had knowledge of the decree. It will be noted that time will run from the date of knowledge only where the summons is not duly served. Where the summons is duly served the date of the applicant's knowledge of the decree Is immaterial, and time will run from the date of the decree. -- 'Shah Shantilal & Co v. Shibor Walla' : AIR1950Mad282 (A), -- 'Subramania Iyer v. Krishnaswami Naidu', 108 Ind Cas 753 (Mad) (B); -- 'Doraiswami Iyer v. Bala Sundaram', AIR 1926 Mad 558 (C); --'Sanka Aiyar v. Subbiah Iyar', 13 Ind Cas 642 (Mad) (D). -- 'Baldeo Das v. Shub Chum Das Goenka', : AIR1926Cal327 (E), -- 'Ghashiram Baluram v. Misrilal Chinnilal', : AIR1925Bom444 (F), -- 'Harcharan v. Md. Azizullah', AIR 1932 Oudh 326 (G).

4. The question therefore is as to when the summons may be said to have been duly served for the purpose of Article 164 of the Limitation Act. The expression 'duly served' also occurs in Order IX Rule 13 and Order V Rule 19 Civil Procedure Code. The Madras High Court has held that the expression in Article 164, must be understood in the sense in which it is used in Order IX Rule 13, and that a summons cannot be stated to be duly served for the purpose of this Article where it has been served on the defendant too late to afford him aft opportunity of appearing at the hearing of the suit: -- 'Stock & Share Exchange, Bureau Rawalpindi v. Kothari & Sons', AIR 1941 Mad 435 (H). In other words 'duly served' means effective service,

5. Under Order V, Rule 20(2), Civil Procedure Code it is provided that service substituted by order of Court shall be as effectual as if it had been made on the defendant personally : AIR1950Mad282 , -- 'Narasimha Chettiar v. Balakrishna Chetty', AIR 1927 Mad 487 (I); -- 'Rajagopalachari v. Subramanlam' : AIR1932Mad472 , 'Krishna Padayachi v. Vinayaka Swamiar' : AIR1930Mad222 , -- 'Shariba Beeby v. Abdul Salam', AIR 1928 Mad 815 (L); -- '108 Ind Cas 753 (Mad) (B)'; -- 'Doraiswami v. Balasundaram', AIR 1927 Mad 507 (M); --'Gyanammai v. Abdul Husain', AIR 1931 Mad 813 (N) and -- 'C. R. P. No. 1639 of 1948 (Mad) (O)'. It follows therefore that substituted service will be equally due service for the purpose of Article 164 of the Limitation Act so long as that substituted service has been effective. That is to say, it must have achieved the object of bringing to the knowledge of the defendant the claim against him: -- 'AIR 1931 Mad 813 (N)'. And this can begathered not only from the return but also from the circumstances of the case and the Judge may decide the question of fact on the affidavit filed: -- 'Venkata Pitchayya v. Md. Abdul Kareem', AIR 1914 Mad 216 (P) and -- 'Nithiananda Muthuswamy v. Visvanatha', 1913 Mad WN 857 (Q). Therefore at the hearing of the application it will be open to the defendant to show not that the order directing the substituted service was not correct but that it was not effective: -- 'AIR 1931 Mad 813 (N)'; -- 'Ram Bharose v. Ganga Singh' : AIR1931All727 (R); -- 'Chettiar Firm v. Aga M. Shirajee', AIR 1939 Rang 436 (S); -- 'Gajadar v. Uma Dutt', AIR 1938 Oudh 11 (T).

6. The Question whether the application should have been filed within thirty days from the date of decree or within thirty days of the knowledge of the decree by the defendant. Is dependant upon the decision of the question whether there was due service or not. If the substituted service has been effective, limitation under Article 164 runs from the date of decree. If the substituted service has not been effective, limitation under Article 164 runs from the date of the defendant's knowledge of the decree.

7. Bearing these principles in mind If we examine the facts in the instant case, it is found that the substituted service has been effective. The defendants have been evading service of the summons first when it was sought to be served personally on them through Court and secondly by means of registered post. This is not a case where by reason of their being away in foreign parts they could not have known of the affixture of the summons on the outer door of their house or of the information given to the female members of the household or the coming of the postman and going away of that postman without his being able to deliver the registered letters. On this evasion being shown to the satisfaction of the Court, publication has been ordered in a widely circulated Tamil daily in the locality where the defendants live, viz., Dhinamani and there has been affixture on the Court notice Board. The circumstances of the case show that the defendants could not have escaped knowing the summons and the substituted service.

In fact where the defendants have been deliberately keeping out of the way in order to avoid service of summons substituted service will be due service irrespective or the question of actual knowledge on his part of the suit: -- 'Muhaidin Kader Meera Sahib v. Lakshmanan Chettiar' : AIR1931All727 . The debtors in the instant case were merely lying low as many debtors do, and awaited the passing of a decree in order to come forward at a later stage to get it set aside and protract the proceedings and defeat and delay the decree-holder from obtaining the fruits of his decree. This case to recall the words of Ghulam Hassan J. in -- 'Mohanlal Goenka v. Benoy Kishna Mukherjee' : [1953]4SCR377 (V) is illustrative of the difficulties which a decree-holder has to encounter in recovering the money in execution after he has obtained the decree of Court. Therefore there has been effective substituted service in this case.

8. On this conclusion, it follows that the period of limitation starts to run from the date of the decree and not from the alleged date of knowledge of the decree. In the instant case the application to set aside the ex parte decree was after the attachment on 25th September 1949, whereas the decree was passed on 2nd November 1948. This civil revision petition is dismissed with costs.


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