1. These petitions arise out of a suit instituted on the small causes side of the Court of the Subordinate Judge of Vellore for the recovery of a sum, which the plaintiff alleged he had advanced as a loan to the defendant. The suit itself was filed on 24th February, 1947. On the application of the plaintiff, suggesting that a short interval should suffice for effecting service of summons on the defendant, the suit was posted to 5th March, 1947, and summons were ordered to issue to the defendant. On 5th March, 1947, the defendant was not present, and the plaintiff's suit was decreed ex parte. From the original of the summons returned to the Court it would appear that the summons was tendered to the defendant on 26th February, 1947, and that he refused to accept the same. The endorsement on the summons was dated 6th March, 1947, and it was apparently only subsequent to 6th March, 1947, that the served copy of the summons with the endorsement of the process server and the earlier one of the village munsiff was sent to the Court. But on 5th March, 1947, itself the suit was decreed ex parte. The defendant filed I.A. No. 365 of 1947 under Order g, Rule 13 of the Civil Procedure Code to set aside the decree that had been passed ex parte. Security had to be furnished and there was a delay of one day in putting into Court the fair bond. In I.A. No. 551 of 1947 the defendant asked the Court to condone the delay. That petition was dismissed. As a result of that I.A. No. 365 of 1947 was also dismissed. Against the decree passed ex parte C.R.P. No. 1337 of 1947 was filed. Against the orders on the Interlocutory applications, C.R.P. Nos. 387 of 1948 and 388 of 1948 were also filed.
2. Order 5, Rule 19 of the Civil Procedure Code runs:
Where a summons is returned under Rule 17, the Court shall, if the return...has been so verified...either declare that the summons has been duly served or order such service as it thinks fit.
In this case the notes paper of the learned Subordinate Judge shows an entry, apparently recorded by his bench clerk, ' Defendant refused. Affixed. Sufficient. Call on.' Whether the learned Subordinate Judge approved of that record it is not possible for me to decide. Below that a summary of P.W. 1's examination was recorded and the order of the learned Subordinate Judge decreeing the suit ex parte was also recorded. Even if the learned Subordinate Judge is to be held to have decided that service was sufficient, such an order could not possibly be maintained in view of the provisions of Order 5, Rule 19 of the Civil Procedure Code. The only material on which the learned Subordinate Judge could have come to a conclusion, that the summons had been duly served, was the endorsement verified on oath on the summons itself, that summons having been returned to Court prior in point of time to the order that the defendant had been duly served. The summons having been returned only on 6th March, 1947, the learned Subordinate Judge could not have been in a position on 5th March, 1947, to comply with the provisions of Order 5, Rule 19 of the Civil Procedure Code; nor could he have been in a position to pass a valid order that the defendant had been duly served. That the returned summons purported to bear an endorsement, that summons had been tendered and refused even on 26th February, 1947, in no way affects the question at issue, whether the Court could, on the material before it on 5th March, 1947, come to the conclusion, that the defendant had been duly served. As the Court had no such basis, the Court was not entitled to proceed with the enquiry ex parte the defendant. The decree passed in such circumstances on 5th March, 1947, is certainly tainted with illegality and has to be set aside under Section 25 of the Provincial Small Causes Courts Act.
3. The learned advocate for the respondent relied on Badvel Chinna Asethu v. Vattipalli Kesavayya : (1920)39MLJ697 and urged that an application for the revision of the decree itself was not competent, as the defendant had availed himself of an alternative remedy by applying under Order 9, Rule 13 of the Civil Procedure Code, to set aside the decree that had been passed ex parte. What was held in Badvel Chinna Asethu v. Vattipalli Kesavayya : (1920)39MLJ697 was:
Where an application under Order 9, Rule 13, Civil Procedure Code, to set aside an ex parte decree was made to the Court of first instance and rejected and the order rejecting the application was not contested by way of appeal from that order, it was not open to the defendant in the appeal against the ex parte decree to object to the decree on any of the grounds mentioned in Order 9, Rule 13 of the Civil Procedure Code.
No doubt, the objector would be on a much stronger ground where it is an application for revision and not an appeal. Normally this Court would be reluctant to interfere in revision where an alternative remedy is provided by law, and particularly so where such a remedy has been availed of. But against the order rejecting the defendant's application under Order 9, Rule 13, Civil Procedure Code, a petition has been filed to revise it, so that order of the Court of first instance has not become final. That should suffice to distinguish the facts of this case from those the learned Judges had to consider in Badvel Chinna Asethu v. Vattipalli Kesavayya : (1920)39MLJ697 . One other point may be of interest. The principal ground on which the petitioner relied was that the summons was returned to court only on 6th March, 1947 and not before 5th March, 1947. That particular question was not presented for adjudication in the application, the petitioner filed under Order 9, Rule 13, Civil Procedure Code. Apparently that fact came to the knowledge of the petitioner only subsequent to the institution of C.R.P. No. 1337 of 1947.
4. To retiterate, the Court should not have passed a decree ex parte on 5th March, 1947, before the Court had a sufficient legal basis to decide that the defendant had been duly served. As I have pointed out the subsequent intervention on an application under Order 9, Rule 13 of the Civil Procedure Code in no way affects the petitioner's right in this case to have the decree wrongly passed ex parte set aside in revision.
5. C.R.P. No. 1337 of 1947 is allowed, and the decree of the lower Court is set aside and the suit is remanded for disposal afresh. The defendant should be given at least 15 days' time from the date on which the suit is restored to file within which to file his written statement if he chooses to do so. Of course, all the defences open to him he will be entitled to put forward in such a written statement. The costs of the Civil Revision Petition will abide the result of the small cause suit.
6. In view of the order passed on C.R.P. No. 1337 of 1947, C.R.P. Nos. 387 and 388 of 1948 do not arise for consideration. These petitions are struck off. There will be no order as to costs in these two revision petitions.