N.C. Mukherji, J.
1. This appeal is directed against an order passed on 30th July, 1974 by Sri S. B. Putatunda, Subordinate Judge, 4th Court, Alipore, in Miscellaneous Case No. 42 of 1973 arising out of Title Suit No. 35 of 1968 dismissing the appellant's application under Order 9, Rule 13 of the Code of Civil Procedure.
2. The facts of the case may briefly be stated as follows:--
The appellant filed an application under Order 9, Rule 13 of the Code alleging that the summons of Title Suit No. 35 of 1968 was never served upon her and prior to 9-11-73 she had no knowledge of the suit and of the decree passed therein. It was only when on the evening of 9-11-73 one Sri Subodh Chandra Mukherjee along with others came to her house and told her that he had been appointed Receiver in the suit. The petitioner thereafter engaged one learned Advocate on 10-11-1973 to make enquiries in respect of the suit. After filing an information slip and on personal inspection of the record the learned Advocate came to know that the plaintiff in collusion with the pro forma opposite parties brought the suit and by practising fraud managed to obtain a fraudulent and collusive decree. The further case of the petitioner is that the plaintiff in collusion and conspiracy with the pro forma opposite parties and the process server procured a fraudulent return of service of summons upon the petitioner. That the summons was never served. That the process server never came to the residence of the petitioner on 29-5-68 or on any other date. That since 1967 the petitioner is not on good terms with her husband, who was defendant No. 1 in the suit and opposite party No. 6 in the present proceeding. It is also alleged that the defendant No. 1 in collusion and conspiracy with the plaintiffs made a sham show of contest to facilitate the passing of the decree in the suit. That had the petitioner been served with the summons, she would have contested the suit and that the petitioner had suffered irreparable loss because of the collusive decree passed ex parte against her.
3. Opposite parties Nos. 1 to 5 and 7 oppose the application. It is stated that the summons was duly served upon her and she had full knowledge of the suit and the decree. On the date of the service of summons the petitioner was residing with her husband at the premises where summons was served. All other allegations in the application have been denied. It is asserted that the suit was very much contested by the petitioner's husband up to the Hon'ble High Court and after repeated failures the petitioner has been set up by her husband with a view to harass the opposite parties. The Hon'ble High Court found that the petitioner's husband Sitanath Dey mismanaged the estate and mis-appropriated a large amount belonging to the estate. The learned Subordinate Judge considered the facts and circumstances of the case and the evidence on record and held that the summons was duly served upon the petitioner. He further found that she had knowledge of the suit and of the decree long before 9-11-73 and as such the application under Order 9, Rule 13 is hopelessly barred by limitation. In that view of his finding the learned Subordinate Judge dismissed the application. Being aggrieved Mira Rani Dey has come up to this Court in appeal.
4. Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the appellant, contends that in the present case it must be held that the summons was not at all served on the appellant. Even assuming though not admitting that the summons addressed to the appellant was tendered to the husband and the husband refused to accept the same and on his refusal the summons was served by affixation even then it cannot be said that it was good service. Mr. Mukherjee submits that in the absence of an instrument in writing the husband cannot be considered to be an agent of the wife and as such the husband cannot be said to have been authorised to receive the sum-mons on behalf of his wife. Mr. Mukher-jee submits that the report of the process server and his evidence very clearly show that no attempt was made by the process server to see whether the petitioner was at the relevant time at her house. Without making such enquiry, it was illegal on the part of the process server to tender the summons to the petitioner's husband. If it is proved in this case that the process server never tendered summons to the petitioner and even assuming that the same was tendered to her husband even then for the fact that the husband cannot be considered to be an agent of the wife it must be said that the summons was not served on the petitioner, Mr. Mukherjee submits that before service can be made by affixation certain conditions must be fulfilled. In this connection Mr. Mukherjee referred to a decision reported in : AIR1952Cal781 (Tripura Modern Bank Ltd. v. Bansen and Co.). It has been held that 'Service by affixation can only be made under the following circumstances: (a) Where the defendant is personally found but refuses to sign the acknowledgment, (b) Where the defendant cannot be found personally but where persons who can be served on his behalf are found, but they refuse to sign the acknowledgment, (c) in the case, however, of an adult male member of the defendant's family residing with him, no attempt to serve upon him can be made at all, unless the defendant was not likely to be found at his residence within a reasonable time'. Mr. Mukherjee contends that the report of the process server and his evidence in Court clearly show that the process server does not say that the petitioner was not at her residence. He also does not say that he made any attempt to tender the summons on her. He only says that as she was not present he offered the summons to her husband who refused to sign and then he served summons by hanging the same in the premises. Mr. Mukherjee submits that the service effected in the manner as stated above cannot be treated as valid and legal service. In support of his contention that in the absence of an instrument in writing the husband cannot be held to be the agent of his wife, Mr. Mukherjee refers to a decision reported in : AIR1962Ker266 (Kunhibi v. The Land Acquisition Officer, Kozhi-kode). In support of his contention that the provisions of the Code have not been complied with in the matter of service Mr. Mukherjee refers to decisions reported in 20 Cal WN 163 : (AIR 1916 Cal 161 (2)) (Kali Kumar v. Aslam) and 26 Cal WN 359 : (AIR 1921 Cal 638), (Dha-ram Chand v. Kanak Sarkar). In the former case it has been held that if the defendant is not found, proper enquiries should be made to find out when and where the defendant is likely to be found and proper effort should be made to find the defendant in the place where he ordinarily resides or carries on business. In the latter case notice was served on the defendant's son. The courts below thought that the service was sufficient compliance with the requirements of Order 5, Rule 15 of the Code as the son was presumed to have duly brought it to the notice of the defendant. It was held by this Court that 'This consideration should not have been weighed with the Court. It has to be definitely found that the defendant could not be found after reasonable and diligent enquiries and the person on whom the notice was served was an adult male member residing with him'. Mr. Mukherjee further submits that Order 5, Rule 14 of the Code has no application unless it is shown that Order 5, Rule 12 of that Code cannot be complied with. In support of his contention he refers to a decision reported in ILR (1955) 1 Cal 119 (Bengal Chand Co. v. Durga Sankar Gouri Sankar). Mr. Mukherjee submits that the report of the process server will show that though the petitioner was at the time of service of the summons at the house but as she did not come out in presence of the process server, the summons was served by affixation. Mr. Mukherjee states that the petitioner being admittedly in her house it was incumbent on the part of the process server to make attempts for tendering the summons to her. Nothing having been done in that regard the service by affixation in the circumstances stated above must be held to be not a valid service. Mr. Mukherjee then draws our attention to Order No. 12 dated 21st of June, 1968 in Title Suit No. 35 of 1968. The order runs as follows:--
'...... Summons duly served upon the defendants 2 and 5. Summons of defendants Nos. 1 and 3 served by hanging. Summons of defendant No. 4 not yet received after service. The defendants Nos. 1 and 2 appear separately and pray for time to file written statement. Prayers are allowed. To 13-7-68 for filing written statement. To 4-7-68 for order awaiting service return of summons of defendant No. 4.........'
The above order shows that the learned court did not comply with the provisions of Order 5, Rule 19. Order 5, Rule 19 lays down that 'Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.' In this case the learned court after taking into consideration the manner in which the summons was served by affixation ought to have held that it was not a good service and ought to have issued an order for fresh service. At least Mr. Mukherjee submits that there is nothing to show that the learned court was satisfied that the summons was duly served upon the defendant No. 3. In this connection Mr. Mukherjee refers to a decision reported in : AIR1967Delhi28 (Punjab Oil Expel-lers Co., Ghaziabad v. Madan Lal Nanda and Sons. It has been held that the provisions of the Code impose an obligation on the Court to satisfy itself after taking the process server's affidavit or statement and after further enquiry as may be necessary, that reasonable efforts were made without success to serve the defendant personally and then declare whether summons was duly served.
5. On the point whether in the present case there has been a valid service or not Mr. Roy Choudhury refers to a decision reported in 21 Cal LJ 653 : (AIR 1916 Cal 600) (Khiroda Sundari v. Nabin Chandra). In this case it was held that 'Where it is impossible for the serving officer to obtain access to the person to be served, either by reason of the custom of the country or for any other reason, the case is covered by the description in Rule 17 'where the defendant cannot be found by the serving officer'.' In the present case it came to the knowledge of the process server that the defendant No. 3 was at the relevant time in her house. But as it was not possible for the process server to tender the summons to defendant No. 3 it was offered to her husband who was none else than the main defendant in the suit being defendant No. 1 and whose summons was also tendered to him and on refusal to accept even his own summons the process server served the summons of the defendant No. 1 and the defendant No. 3 by hanging. In such circumstances, Mr. Roy Choudhury submits that it must be held that it was good service. In support of his contention Mr. Roy Choudhury relies on a decision reported in 35 Cal WN 332 : (AIR 1931 Cal 546) (Sarat Chandra v. Joy Sankar). In this case 'The service was effected by tendering a copy of the notice to brother of the defendant concerned, who was also another defendant in the suit and an adult and was living in the joint family dwelling-house and when he refused to accept the copy of the notice so tendered it was served by affixing it on the outer door of the cutchery ghar in the outer apartment. In those circumstances, the service of notice at the joint family dwelling-house by put-ing it up on the outer door of the house was held to be sufficient.' With regard to the point raised by Mr. Mukherjee that the court on 2lst of June 1968 did not record any order to the effect that the summons was duly served. Mr. Roy Choudhury submits that though it is desirable that all courts should observe the mandatory provision in Order 5, Rule 19 and either declare that the summons has been duly served or order such further service as it thinks fit, yet the absence of such an express declaration will not involve as a necessary consequence a finding that a summons has not been duly served. This view has been expressed in a case reported in AIR 1940 Mad 213 (Venkata Rayanim v. China Bapanna). The appellant wanted to make out a case in the court below that she had strained relationship with her husband and that it was her husband who in collusion with the plaintiff made a sham show of contest in the suit and caused an ex parte decree to be passed against her. On going through the evidence we find that it has not at all been established that the appellant had strained relationship with her husband, rather it is the admission of the wife that her husband used to look after her other case. It is the admitted position that both the husband and the wife are living together in the same house. The husband very much contested the suit not only in the court below but also up to this Court. It may be mentioned in this connection that it is only after the Receiver was appointed and after the Receiver went to the house of the appellant and her husband on 9-11-73 the appellant filed the present application on 26-11-73 stating that she had no knowledge prior to 9-11-73. It may be mentioned that the suit was filed on 21-5-68 and it was decreed on contest against the defendant No. 1 on 29-9-70. The defendant No. 1 filed an appeal to this Court being F. A. No. 223 of 1971 which was dismissed for non-prosecution on 17-5-73. We have taken into consideration the fact that there was no written authority by the wife to the husband authorising to accept the summons on her behalf. But considering the fact that the process server could not serve the summons to the appellant as she was inside the house and the summons of the appellant and that of her husband (who is defendant No. 1) were tendered to the husband and on husband's refusal the same was served by affixation and that on the date fixed the husband appeared in the court and prayed for time to file written statement, we are of the opinion that the summons was duly served upon the appellant.
6. Mr. Roy Choudhury raises a point to the effect that there was an appeal in this Court against the decree and as the said appeal was dismissed the appellant cannot after the disposal of the appeal by this Court proceed with the application under Order 9, Rule 13. Mr. Roy Choudhury contends that the decree of the trial court merged with the decree of the appellate court and as such the said decree cannot be challenged by an application under Order 9, Rule 13 of the Code. Mr. Roy Choudhury in support of his contention refers to a decision reported in 28 Cal WN 795 : (AIR 1924 Cal 830) (Kalimuddin Ahmed v. Esabakuddin). At page 801 (of Cal WN): (at pp. 834-835 of AIR) of the said report it has been held that 'When the ex parte decree has been confirmed or otherwise disposed of on appeal the Court which passed the ex parte decree has no longer any power to entertain an application to set it aside, even though the application has been made before the appeal was filed'. Mr. Roy Choudhury also relies on a decision reported in : AIR1967Bom310 (Kantilal v. Chiba Bava Bhandari) where it has been held that even when an appeal is dismissed summarily under Order 41, Rule 11 of the Code an application under Order 9, Rule 13 is not competent since the decree of the trial court merged with that of the appellate court. Mr. Mukherjee submits that in this case it may be mentioned that the appellant Mira Rani Dey did not prefer any appeal against the ex parte decree. It was only Sitanath Dey against whom the decree was passed on contest preferred an appeal and that being so, it cannot be said that Mira Rani cannot proceed with her application under Order 9, Rule 13. On this point Mr. Mukherjee first relies on a case reported in (1911) 15 Cal WN 798 (Intu Meah v. Dar Baksh Bhuiyan). In this case it has been held that 'Where a decree was passed against several defendants against some of whom it was ex parte, and a defendant who appeared unsuccessfully appealed against that decree, the Court passing the decree has jurisdiction to set aside the ex parte decree as against a defendant who had not appealed.' Mr. Mukherjee also reliea on a Supreme Court decision reported in : 1SCR394 (Gojer Brothers (Pvt.) Ltd. v. Ratan Lal Singh). In paragraph 12 of the said report while discussing on the question of merger their Lordships observed: 'The principle, therefore, that there is no decree as such of the appellate court if it dismisses the appeal for default of appearance or for want of prosecution or on the ground that the appeal has abated or is withdrawn or that the appellant has failed to furnish security for costs as provided in Order 41. Rule 10 of the Code of Civil Procedure, can have no application to the instant case'. On a careful consideration we accept the contention of Mr. Mukherjee and hold that simply because the defendant No. 1 preferred an appeal to this Court and that appeal was dismissed for non-prosecution it cannot be held that the defendant No. 3 cannot proceed with her application under Order 9, Rule 13.
7. On the point of limitation the court below has found that the defendant No. 3 had knowledge about the suit and the decree much before 9-11-73 and that ths application is barred by limitation, Mr. Mukherjee submits that even assuming that the defendant had knowledge of the suit, for the application of Article 164 of the Limitation Act it is necessary to ascertain when the defendant applying for setting aside the ex parte decree had knowledge of the decree. Mere knowledge of the date of the suit would not be enough for that purpose. Mr. Mukher-jee further contends that the expresison 'knowledge of the decrees in Article 164 means knowledge of the particular decree which is sought to be set aside. No doubt the onus is on the defendant to show that the application is within time and that he had knowledge of the decree within 30 days of the application. If the defendant produces some evidence to show that the application is within time, it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30, days before the date of the application. In support of his contention Mr. Mukherjee relies on : AIR1963Mad198 (Richai Ammal v. Vellaya Thevar) and AIR 1967 SC 1384 (Panna Lal v. 'Murari Lal).
8. Mr. Harinarayan Mukherjee, learned Advocate for the respondents, submits that the interests of the defendant No. 1 and the defendant No. 3 are not adverse in any way that the two defendants are sailing in the same boat. It is in evidence that Sitanath Dey, husband of Mira Rani Dey, used to look after her property and litigation. It has also been established by evidence that they have been residing in the same house. Mr. Mukherjee relies very much on Ext. B, a notice, in Civil Rule No. 572 (F) of 1971 in connection with the First Appeal filed by Sitanath Dey. Mr. Mukherjee places before us the record of the said Rule and we find that the said Rule was served upon Mira Rani Dey by registered post. On the acknowledgment form there is signature of one Mira Rani Dey. It appears that Mira Rani received the registered notice on 18-6-71. It has been contended by Mr. Saktinath Mukherjee that this acknowledgment is not part of the present record and as such this ought not to have been placed before us and secondly in the acknowledgment form there is no address of Mira Rani Dey and that being so it cannot be said definitely that the appellant received the registered letter containing the notice of the Rule on 18-6-71. It is true that there is no address in the acknowledgment form. Generally, addresses are given on the envelopes and the post cards which are registered. It is not unusual that in the acknowledgment forms address of the addressee remains blank. But it is seen that the address of the sender has been correctly given. For all the reasons stated above we find that Mira Rani Dey had knowledge of the decree much before 9-11-73 and the application having been filed on 23-11-73 it is barred by limitation.
9. This appeal thus fails and is dismissed on contest. We, however, do not pass any order for costs. Let the records go down immediately.
B.C. Ray, J.