This is an application against an order restoring a suit to file which bad been dismissed ex parte. The defendants are said to have been served by substituted service but they did not appear, and not until a year after the date of the decree did they apply to set it aside. The District Munsif has merely found, because he thinks that the defendants had a good defence to the suit, that they could not have had notice and if they had been properly served they would not have failed to appear, and finding that they could hot have been properly served he restored the suit. If, however, substituted service was effected under Order V. Rule 20, such service is as effectual as if it had been made on the defendant personally and must be deemed to be due service within the meaning of Article 164 of the Limitation Act. This view has been held in two previous cases Doraiswami Aiyar v. Balasundaram Iyer : AIR1926Mad558 and Narsimha Chettiar v. Balakrishna Chetty : AIR1927Mad487 to the latter of which one of us was a party. The contrary view was taken by Mr. Srinivasa Iyengar, J., in Vitta Venkatachalam v. Sivapuram Subbiah : AIR1928Mad655 but in comingtohis conclusion hehad not adverted to the provisionsof O. V, Rule 20, Clause (2) and with all respect we are unable to accept his view as against the provisionsof that section.
A further contention is raised that no revision petition under Section 115 can be entertained in the present case. As, however, the District Munsif has refused to take evidence merely because he thinks that certain facts are probable, we think that this is certainly a material irregularity in the exercise of his jurisdiction. There are allegations in the respondent's affidavit to the effect that he was fraudulently kept out of knowledge of the proceedings in Court, and the question of whether substituted service was duly effected has not been tried by the District Munsif. We must, therefore, set aside his order and remand the petition to him for fresh disposal after admitting any evidence on this point which maybe adduced and in the light of the above remarks.
Costs of this petition will abide the result.