1. This is an appeal against an order refusing to set aside an ex parte decree. The decree was made in a mortgage suit on the 21st January 1913. The application to set aside the decree was made on the 17th April 1915. The Subordinate Judge has dismissed the application on the ground that the summons was duly served upon the applicant. In our opinion the evidence does not support that conclusion. The summons is said to have been served on the 1st December 1912 at a place called Bantra in the District of Howrah, The case for the petitioner is that he resides ordinarily in his house at Cawnpore in the same District and that he has done so for many years past. He further asserts that on the day the summons is said to have been served, he was not in Bantra, but in his house at Cawnpore. These statements were made on oath and make out a prima facie case. To rebut this, the decree-holders bring forward the peon who served the summons. The indentifier is not produced because he is dead, and the witnesses to the service have not been called because apparently they cannot be fourd. The oral testimony of the peon is extremely unsatisfactory and his statements in the return of service are equally unsatisfactory. The statements come to this, that he went to serve the summons to Bantra and that the first defendant (the appellant before us) was in 'the verandah upstairs in a state of illness.' So he sent the summons through Chandra Kanta Sil, agent of the defendants, and asked for its receipt. As the receipt was not granted, the summons was affixed in the usual manner at the outer door of the house. The recital in the return does not state that the peon went upstairs and met the first defendant. It is extremely unlikely that he should have done so. He does not state how he learnt that the first defendant was lying in a state of illness upstairs. His evidence given in that present proceedings does not clear up the matter. Apparently it was hearsay. But even if the first defendant was in the house at Bantra at the time, the question arises, whether the service effected at the place was good service upon him under Order V, Rule 17, Code of Civil Procedure. If we assume that the first defendant refused to accept the summons sent to him, the summons would have to be served in the house in which he ordinarily lived. According to the appellant he lives ordinarily in his house at Cawnpore and has done so for many years past. That statement stands practically uncontradicted Consequently we cannot hold that service was effected upon the first defendant in accordance with law.
2. We may point out that within two days of the alleged service, one of the defendants Kunjo Bihary Pal Chowdhury appeared before the Subordinate Judge and stated that the summons had been left in the house at Bantra, although some of the defendants had not resided there, and stated specifically that the defendant Braja Nath Pal Chowdhury who is the appellant before us lived at his own house in village Cawnpore. It is extremely unlikely that this statement is untrue and should have been made in view of a possible application by Braja Nath Pal Chowdhury for setting aside the ex parte decree which might be made against him.
3. It has finally been argued that the application is barred by limitation. Under Article 164 of the First Schedule to the Indian Limitation Act, the application has to be presented within thirty days of the date of the decree or of the date on which the petitioner becomes aware of the decree. The petitioner states in oath that the application was made within two days of the date when he first became aware of the decree. It is suggested, however that he must have been aware of the decree many months earlier, because summons was served upon him from this Court of a Rule obtained by the respondent to amend the decree which had been made in the suit. The Subordinate Judge has not accepted this evidence and in our opinion very properly. The respondent has not produced the primary evidence of the service of the Rule. He might have easily done so by applying for copies of the papers from the record of this Court. We are, therefore, of opinion that the application was made in time.
4. The result is that this appeal is allowed, the decree of the Court below set aside and the suit revived. The Subordinate Judge will take up the case for disposal as early as possible. As the decree was made in a mortgage suit and as the usual accounts must be taken in the presence of all the defendants, the entire decree is set aside, the whole case will be under the consideration of the Subordinate Judge. The costs of the trial up to the present stage will be costs in the cause. The appellant is entitled to his costs of this appeal from the plaintiffs-respondents. We assess the hearing fee in this Court at two gold mohurs.
5. Let the record be sent down as early as possible.