S. Ramachandra Iyer, C.J.
1. This is an appeal by the second judgment-debtor under a decree passed by the District Court of the Civil and Military Station, Bangalore, against the order of the learned Subordinate Judge, Devakottai directing execution to proceed. The execution proceedings had a chequered career and it will be useful to refer to it if only to appreciate the only point now in controversy between the parties.
2. The first judgment-debtor, G. V. Kaman, was carrying on business under the name of Imperial Railway Materials Corporation at Krishna Rao Naidu St. Thyagarayanagar, Madras. He had his residence at No. 19 Crescent Park St. Thyagarayanagar, Madras. The appellant who is the second judgment-debtor belongs to Shanmuganathapuram, a village three miles from Devakottai. He was a friend of G. V. Raman and admittedly he used to stay in the latter's place of business whenever he used to come to Madras. It is also admitted that he resided during. January-February 1937 at No. 19 Crescent Park St. On 17th June 1937 both G. V. Raman and the appellant joined in the execution of a promissory. note in favour of the Bangalore Bank Ltd., for a loans of Rs. 26056 taken by the former from the bank. The bank subsequently went into liquidation. The Official Liquidator who then came on the scene instituted! O.S. No. 16 of 1940 in the District Court of the Civil and Military Station at Bangalore to recover the amount due under the promissory note from both the executants. Presumably summons in the suit was taken to No. 19 Crescent Park Street, to both the debtors.
They did not appear and there was a decree on 30-9-1949 for a sum of Rs. 35713-9-1 against both of them, with subsequent interest and costs. The Official Liquidator took certain steps and realised some amounts from the first judgment-debtor towards the decree. He later assigned the balance due under this decree and some other decrees also in favour of Chinnaswami Mudaliar (who is now dead and whose sons, the respondents have been brought on record after receiving a sum of Rs. 7000, as consideration for the transfer. It is seen from the judgment of this Court in C. M. A. No. 311 of 1956 (in the course of the present execution proceedings), that the respondents' father too was able to realise some amounts. But we are not able to ascertain from the records now available as to whether that is so or not. The record only reveals that a number of execution petitions had been filed against the first judgment-debtor: G. V. Raman, there being nothing to show payments; by him to the assignee decree-holder. On 19-5-1952,. the respondents' father filed an application before the Court which passed the decree for recognition of: the assignment of the decree in his favour and for. transmission of the same to the High Court, Madras for execution.
Notice was ordered on 23-6-1952 to the assignor as well as the appellant. The former was duly served But service on the latter which was sought to be effected by registered post, was ineffective as it was returned by the postal authorities unserved. This was on 9-7-1952. Without even making an attempt to ascertain the residence of the appellant, an application for substituted service was immediately filed. There is nothing on evidence to show that the Court, was satisfied that there was evasion of service on the part of the appellant. But yet it ordered notice to the appellant by substituted service by publication., in the Indian Express, an English newspaper published in Madras. On 12-7-1952 there was a laconic publication in that paper without even referring to the address of the appellant giving the information that the petition for execution was posted for hearing; on 14-7-1952 and that it would be heard ex parte if the ''respondent (appellant herein) failed to appear on that date.' The application which was taken upon 14th was adjourned to 28th of the same month to enable the respondents' father to produce the assignment deed executed in his favour.
There was however no intimation of any kind to the appellant in the matter of adjournment to the later date. On the later date the court recognised the assignment in favour of the respondent's father and: ordered transmission of the decree. Shortly thereafter the respondents' father coming to know that the appellant was at Devakottai, had the decree transferred to the lower court for execution. The appellant contested the application on various grounds. But they were overruled by the executing court An appeal (C M A N 311 of 1956) was filed to this court against that order. It came up for disposal before Panoha pakesa Aiyar J. The learned Judge found that there was no substance in the appeal except in regard to one point, and that related to the contention that as no proper notice of the application in the Bangalore Court for recognition of the assignment of the decree in favour of the respondents' father was served on the appellant the execution proceedings should be regarded as not maintainable. It was conceded by both the parties before the learned Judge that the executing court should be asked to give a finding on that question and the order in execution should be set aside and the matter remanded to the executing Court for giving the necessary finding. The learned Judge stated :
'The only point remaining to be decided is this important point, namely, whether notice regarding assignment was given to this appellant and deemed to be sufficient] or substituted service taken out validly, and therefore, the assignment is bidding on him, or whether notice was not taken or held sufficient, and the assignment has not yet been recognised as against him.'
In pursuance of the order of remand passed by this court, the learned Subordinate Judge took evidence on the question and gave a revised judgment holding that as substituted service of notice of the application had been effected in pursuance to the order of the Court, service on the appellant of the notice in the application for recognition of the assignment of the decree should be held to be beyond avail and therefore the execution should proceed. The learned Subordinate Judge also gave the finding that even if such service were to be regarded as not proper in the circumstances, the remedy of the appellant would be to approach the District Court, Bangalore, namely, the Court that passed the decree, to set aside the order recognising the assignment and that the same could not be agitated in the course of execution in the transferee Courts The second judgment-debtor has filed this appeal against that order.
3. Before proceeding to consider the main and only point argued in the case, we must observe that the finding of the lower Court as to the maintainability of the plea as to insufficiency of service in these proceedings though correct, cannot be allowed to be taken now. As we pointed out earlier, both the parties consented to the execution Court investigating that question. Even if that be regarded as a departure from the procedure prescribed under the law, it would not be open to one of the parties who assented to such departure to go behind it and then contend that the executing Court had no jurisdiction to go into that question. We shall therefore confine our consideration of the appeal on the only question that was referred to the lower Court for adjudication, namely, whether the substituted service effected was one sufficient in law.
4. From the records now available it is seen that there was no notice to the first judgment-debtor of the application for recognition of the assignment in the Court which passed the decree. There was one attempt made, and that by registered post, to serve the appellant, whose permanent place of residence was somewhere near Devakottai. That notice which was addressed to the place where G. V. Raman was originally residing was returned unserved. There is nothing to show that the Court was satisfied that there was any reason to believe that the appellant was keeping out of the way for the purpose of evading service. But yet it directed notice by substituted service. There again there was no compliance with the mandatory provisions of Order 5 Rule 20 sub-clause (3), Civil P. C. by way of giving a reasonable time for the published notice to come to the knowledge of the person concerned. The notice was published at Madras on the 12th, and the hearing was fixed for the 14th.
The appellant who was at Devakottai could not be reasonably expected to look into that notice and be able to go to Bangalore in time, to attend the hearing on the 14th. Rule 20 of Order 5, Civil P. C. provides for substituted service the main purpose of it is to bring it to the notice of the person to whom it is intended. Substituted service cannot be regarded as an idle formality to be gone through. The Code intends it as a substitute to actual, personal service.| Unfortunately the learned Subordinate judge appears to have thought that as substituted service had been ordered by the Court and effected, the question of the sufficiency of it will no longer arise. That however is not the correct way of approaching the question. A valid substituted service of a notice should conform to the conditions prescribed in Order 5, Rule 20, Civil V. C. If it does not conform to that rule, service will have to be regarded as not in accordance with law and therefore not sufficient. The learned Subordinate Judge has referred to an immaterial circumstance namely the service of the summons in the suit. He states :
'I am inclined to think that because of the omission of the 'word 'park' after the word crescent, this defendant has managed to have the summons returned in 1940 under the pretext as he would have known that it was coming from Court.'
There is no warrant for any assumption of this kind. The only evidence on the side of the respondent's father is that of his advocate. He has stated that the assignee-decree-holder never knew that the second judgment-debtor was a resident of Devakottai. But it is strange that neither assignee decree-holder nor his clerk who filed the affidavit came forward to give evidence. They did not attempt to let in any evidence to show how, if they did not know of the residence of the second judgment-debtor at the time when they took out notice on the application for recognition of the assignment of the decree, they came to know of it shortly thereafter when they applied for transmission of the decree to the Court at Devakottai. The mere circumstance that the appellant was living in Crescent Park Street in January-February 1937 would not show that it was the place of his last known residence or permanent residence.
We are therefore unable to accept the conclusion of the learned Subordinate Judge which has been greatly influenced by the view that if the formality of notice by substituted service had been gone through the order recognising the assignment could not be impugned, that view is contrary to the specific direction contained in the order of remand passed by this Court. The lower court was to enquire whether the substituted service effected in the ease could be said to be in conformity with the provision of Order 5 Rule 20, Civil P. C. and was valid. To answer that question, by stating that as there has been substituted service no question of its validity could at all arise, can hardly be regarded as complying with the terms of the order of remand.
5. For the reasons stated above, we are constrained to set aside the judgment of the lower Court and allow this appeal. There will however be no order as to costs.