1. This is an appeal by the plaintiff against an order made by my learned brother, Mr. Justice Page, on the 22nd of July 1924' : AIR1925Cal627
2. The facts which it is necessary for mo to state are as follows:
3. The plaintiff filed the plaint on the 28th of February 1924, and summary proceedings were taken under Order 37 of the Civil Procedure Code. On the 15th of April 1924, the plaintiff obtained a decree which was made ex parte. The plaintiff, having obtained his decree, attached certain premises in Calcutta. On the 24th of June, notice of an application was issued on behalf of the defendants for an order that the ex parte decree of the 15th of April 1921 and the attachment effected in execution thereof on the interests of the defendants in the premises thereon mentioned should be sat aside and that the defendants should have unconditional leave to defend the suit.
4. The learned Judge heard the application, and on the 22nd of July 1921 made an order that the decree and all proceedings in execution thereof be set aside and that the attachment issued in execution of the said decree be withdrawn. It is against that order that the plaintiff has appealed.
5. The learned advocate, who appeared for the defendants, took a preliminary point that no appeal lies on the ground that the order, which the learned Judge made on the 22nd of July 1924, was not a 'judgment' with in the meaning of 01. 15 of the Letters Patent.
6. The main question before the learned Judge was whether the summons had been duly and properly served.
7. The learned Judge heard evidence in respect of this matter and delivered a judgment in which he dealt with the various points, which had been raised, at considerable length.
8. At first sight it may seem unreasonable to suggest that this is not a 'judgment.'
9. But the decisions of this Court go to show that the word 'judgment' in Clause 15 of the Letters Patent does not include every order which a learned Judge makes or every decision given by a learned Judge, even though it may be accompanied by a statement of the reasons which actuated the learned Judge in arriving at his decision.
10. The decisions of this Court upon this point are numerous. Many of them have been based upon the definition which was given by the learned Chief Justice Sir Richard Couch in the case of Justice of the Peace for Calcutta v. The Oriental Gas Co. 8 B.L.R. 433; and, some of them, in my opinion, are difficult to reconcile with the judgment of the learned Chief Justice in that case.
11. On previous occasions I have expressed the opinion that, whenever this point arises, it is for the Court to decide whether the particular order in question as a judgment within the meaning of C1. 15 having regard to the particular facts of the case and to the nature of the order. If the learned Judge had refused the defendant's application to set aside the ex parte decree, it is not disputed that the defendants would have had a right of appeal.
12. The reason for that is, that there would have been a final decision as to the merits of the questions between the parties in the suit, and the liability of the defendants would have been finally established so far as that Court was concerned.
13. That view of the master is recognized in the Civil Procedure Code, because Order 43, Rule 1 provides that 'An appeal shall lie from the following orders under the provisions of Section 104, namely...' (d) an order under Rule 13 of Order 9 rejecting an 'application (in case open to appeal) for an order to set aside a decree passed ex-parte.'
14. Though there is a right of appeal against; an order rejecting an application to set aside a decree passed ex parte, it does not follow that there is a right of appeal when the learned Judge, instead of rejecting the application, accedes to it and set aside the ex-parte decree.
15. As far as 1 am aware, this is the first case in which it has been alleged that there is a right of appeal in such a case as this: and, no case has been brought to our attention in which the exact point has been decided.
16. There must have been many cases, in which an ex-parte decree has been set aside by a learned Judge sitting on the Original Side, and it is significant that, as far as I am aware there has been no appeal to this Court from such an order.
17. I have come to the conclusion that there is no right of appeal; and, I base my judgment upon the principle laid down in the case of Justice of the Peacs for, Calcutta v. Oriental Gas Co. 8 B.L.R. 433 and upon the principle which I think underlies the decision in Maharaj Kishore Khanna v. Kiranshosi Dassi (2.)
18. The result of the learned Judge's order is, that the merits of the questions between the parties in the suit have not been decided. On the contrary the result is that the suit has been restored and the matters in dispute and the question whether the defendants are liable for the amount claimed have yet to be decided.
19. The learned advocate, who appeared for the plaintiff-appellant, submitted that the order in this case is not an order merely setting aside the ex-parte decree, and he drew attention to the fact that it directed that all proceedings in execution should be set aside, and the attachment should be withdrawn: and, he argued that inasmuch as the order included that provision, it was an appealable order.
20. That submission was at one period of the argument attractive to my mind, but on further consideration 1 am of opinion that it is rot sufficient to justify the Court in holding that this order is appealable.
21. The proceedings in execution were consequential upon the decree, and if an order, which merely sets aside an ex-parte decree, is not appealable, it seems to me impossible to hold that the decree is appealable simply because the plaintiff had the time and opportunity to attach property in execution of the decree before the appeal was filed.
22. It was further argued that the learned Judge in this case had not exercised the jurisdiction vested in him by Order 9, E. 13 of the Civil Procedure Code and that the application was in reality an application for a review of the judgment by which he made the ex-parte decree on the 15th of April 1924.
23. I am unable to accept that argument; I think there is no doubt that the application was made by the defendants under Order 9, Rule 13, and the learned Judge purported to exercise the jurisdiction vested in him by that rule. The Court might find itself in difficulties in future cases if we were to accede to the learned advocate's argument in that respect.
24. The conclusion therefore, at which I have arrived is that no appeal lies. That is sufficient to dispose of the appeal and in my opinion it must be dismissed.
25. The appeal, however, was heard upon its merits: and the learned advocate invited us to express our opinion upon the merits.
26. The learned Judge dealt with the matter under the second part of Order 5, Rule 17. That rule provides: 'Where the defendant or 1 is agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain....'
27. The learned Judge came to the conclusion that one Madanlal was an authorized agent of the defendants to take charge of legal proceedings. I am not sure whether he meant by that finding to hold that Madanlal was an agent of the defendants empowered to accept service of the summons in this suit. If the learned Judge was of the opinion that Madanlal was an agent empowered to accept the summons on behalf of the defendants it seems to me that there was evidence which went to show that the summons was tendered to Madanlal and that he refused to accept it, and it might be argued with considerable force that the first part of Rule 17 applied to this case. But in the absence of an express finding upon that point, in my judgment, it would not be safe for this Court to rely upon it.
28. A further point was raised in the course of the argument, namely, that the application of the 24th of June 1924 was out of time; and reliance was placed upon Article 164 of the Limitation Act, which provides that for an application by a defendant for an order to set aside a decree passed ex-parte the period of limitation is 30 days, to run from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree.
29. In this case the learned Judge held that the summons was not duly served and there is no express finding when the defendants had knowledge of the decree. There are, however, findings, which go near to a conclusion that the defendants must have known of the decree on or about the date on which it was passed; and if it were open to us to decide this appeal upon the merits, I should have felt a strong inclination to have some further evidence or some further enquiry upon that point inasmuch as the application to set aside the decree was not made until the 24th of June 1924 though the decree was made on the 15th April 1924.
30. Finally it was argued by the learned advocate that the learned Judge's conclusion, that those who were acting on behalf of the plaintiff, in effecting service of the summons, had not used all reasonable and due diligence to find the defendants, was wrong. It was argued that the learned Judge based his Conclusion upon a finding that the serving peon, after discovering that the defendants, at the time when he attended at 12, Banstolla Gully, were not in the house, admittedly made no enquiries whatsoever of anybody as to their whereabouts.
31. That finding of the learned Judge was strenuously challenged: and, it seems to me on the evidence that there is considerable force in the argument which was presented to us in that respect.
32. I do not mean to detract in any way from the principle involved in the learned Judge's judgment. I agree that it is necessary for the Court to be satisfied on such an application as this that the provisions of the second part of. Rule 17 of Order 5 have been really complied with. It is necessary in each case for the Court to see whether in fact the serving officer has used all due and reasonable diligence with a view to finding the defendant before the process of affixing the summons to the outer door or some conspicuous part of the house is resorted to.
33. It is not necessary, in my judgment, for me to say more as to the merits in view of the fact that I have arrived at the conclusion that an appeal does not lie.
34. For these reasons, in my judgment, the appeal must be dismissed with costs.
35. It is with regret that I concur in the conclusion that this appeal must be dismissed on the ground that the order is not appealable: for upon the findings of fact of the learned Judge, apart from my own view of the evidence generally I would come to the opposite conclusion. It is, however, some satisfaction to know that if justice requires that a decree, should be made in favour of the plaintiff he will have a further opportunity of obtaining it.
36. Before considering whether or not the order appealed against is a judgment within Clause 15 of the Letters Patent, I desire briefly to refer to one aspect of the question which was presented by the learned Counsel for the appellant. He submitted that the order was appealable inasmuch as it could only have been made by way of review under Order 47 of the Code of Civil Procedure, since an application under Order 9, Rule 13 it obviously was barred by limitation.
37. I may say that, speaking for myself, I should have been willing to accede to this argument had there been the faintest indication in the record that the learned Judge purported to make the order by way of review. We have been referred to the petition upon which the order was based and the statements which it contains setting out matters beyond what is necessary for the purpose of an application under Order 9, Rule 13. That may be and is no doubt the case, but it does not follow, particularly when the prolixity of petitions and pleadings in this Court is borne in mind, that the application was made by way of review or that the learned Judge so made the order. The Code of Civil Procedure provides that an application for review shall be made in a particular form. There is no pretence whatever that the petition in this case is in that form, but this is not a point of much cogency, as similar applications have been treated as applications for review on the Original Side of the Court. The learned Judge, however, says that the defendant brings the application by reason of the provisions of Order 9, Rule 18 and had there been, I repeat, any indication upon the record that he was proceeding by way of review, the position might have been different. As it is the order must be regarded as having been made exclusively under that order and rule.
38. The order provides in the first place that the ex-parte decree shall be set aside and the suit restored, and further that certain attachment proceedings incidental thereto shall be set aside. These are two separate and distinct matters.
39. The order restoring the suit is not appealable under the Code of Civil Procedure. The intention of the Code would appear to be that in the circumstances to which Order 9 is applicable--be it under E. 13 or under Rule 9--where the result is that no further proceedings may take place, an appeal will lie; but where a party who has been deprived of his decree will have a further opportunity of obtaining it, if justice requires that he should do so, then no appeal lies. These principles would appear to be material in considering what is a judgment, which has been the subject of many decisions of this Court.
40. The order restoring the suit does not affect the merits of the question between the parties by deciding some right or liability, for the right or liability is left open to be decided, and upon the further hearing, which necessarily follows from the order, it will be decided.
41. A further argument addressed to us is that the order restoring the suit is an order determining some right or liability because it also sets aside the attachment since obtained, and that, in consequence, the right of the plaintiff to have a certain property attached and sold at and from the date of the attachment is a right which has been determined and of which he has been deprived.
42. This argument appears to me to be fallacious. I apprehend that the definition of a 'judgment' which is from the Oriental Gas Company's case 8 B.L.R. 433 and has been cited in many decisions of this Court must be applicable in its entirety to the order actually appealed against, and that you cannot apply one part of it to the order under appeal and another part of it to some other order which is or may be affected if the order appealed against is reversed. It does not affect the matter that the order setting aside the attachment is also appealed against. If anything, that lessens the force of the argument, for the latter order may be dealt with separately.
43. No doubt the judgment states the views of the learned Judge, but every judicial exposition of a Judge's opinion is not a ''judgment' within the meaning of C1. 15 of the Letters Patent. There is also no doubt a decision. The decision is that the ex-parte decree should be set aside. That does not affect the merits of the dispute between the parties, still less, apart from the attachment, does it decide any right or liability. As regards the proceedings for attachment or the right to have the attachment set aside, independently of the right to have the suit restored, there has been no adjudication and it is impossible to say that the decision embodied in the judgment of the learned Judge affects the merits of any question upon which the attachment or the right to attach depends, or that any such adjudication determines any right of the plaintiff or liability of the defendant. The order setting aside the attachment is, in my opinion, dependent upon the order restoring the suit and consequential there upon; and because it is affected as a consequence of the order restoring the suit it is not open to the appellant to contend that therefore the order restoring the suit, which is otherwise not appealable, becomes appealable. In my opinion, the order which we are asked to set aside is not appealable and the appeal will have to be dismissed upon that ground.
44. As regards the merits 1 do not purpose to examine the facts and circumstances in the manner which it would have been necessary to do, were we allowing the appeal on that ground; but I have already generally stated my conclusion. It does however, appear upon a perusal of the judgment that the learned Judge has not considered the effect of the presence of Madanlal as, to use his words, 'the authorized agent of the defendants to take charge of legal proceedings,' with reference to Order 5, Rule 17. The learned Judge clearly accepted the evidence adduced on behalf of the plaintiff in preference to that adduced on behalf of the defendant, and on a scrutiny of the evidence it would require no great effort to hold that Madanlal, whether or not the learned Judge so meant by the words which I have quoted, was an 'agent empowered to accept service of summons on behalf of the defendant.' I need not dwell upon this aspect of the matter or the effect of such a conclusion in relation to' the other findings of the learned Judge or the evidence generally; for the learned Judge has not considered it and moreover it is unnecessary in view of the order to be made on the appeal.
45. The learned Judge has on several occasions used the expression 'substituted service' which indicates some slight degree of misapprehension in his mind. No doubt if the circumstances are such that eventually the writ is affixed on the outer door of the house there is a substitution in the sense that the document is not left in the hands of the person on whom service should be effected, if possible, but that is not 'substituted service' as recognized by the Code of Civil Procedure. 'Substituted service' is provided for by Order 5, Rule 20, but, as there is no question of the service being substituted service in this case, I need not refer to it further, beyond mentioning that before service may be so effected the Court has to be satisfied with regard to certain matters which do not arise where service is effected in the manner provided by Order 5, Rule 17.
46. Before concluding I desire to comment on certain general observations made by the learned Judge in the course of his judgment as briefly as I may without referring to the evidence in detail. Order 5, Rule 17 provides that 'where the serving officer, after using all due and reasonable diligence, cannot find the defendant....' he shall do certain things for the purpose of effecting service. The words all due and reasonable diligence' are general, as necessarily they must be, for they are applicable to every case where service has be be effected.
47. In Cohen v. Addy  19 Cal. 201, Petheram, C.J., sitting singly on the Original Side of the Court made certain observations with regard to this. He said:
48. 'It is true that you would go to a man's house and not find him, but that that is not attempting to find him. You should go to his house, make enquiries and if necessary follow him You should make enquiries to find out when he is likely to be at home and go to the house at a time when he can be found.' These observations have been quoted by the learned Judge in the order under appeal. In Rijendra Nath Sanyal v. Syed Jan Meal  26 Cal. 101, Jenkins, J., delivered a judgment as to what is required to be proved as to service in undefended cases, and said: 'For the purpose of establishing that the defendant cannot he found, it must be shown that proper efforts to find him were made, as for instance, that the serving officer went to the place or places and at the times at which it was reasonable to expect he would be found,'--that is so far as I need quote, the remainder refers to other matters to be proved.
49. The words in these two judgments are in strong contrast; the earlier appears to prescribe a detailed procedure by way of a general rule as to what is 'due and reasonable diligence:' while the latter merely gives an instance.
50. It has been said more than once that each case must depend on its own circumstances, a proposition with which I fully agree, which makes it impossible by reference to details to say what is necessary by way of 'reasonable and due diligence.' What is due diligence in one case may not even be diligence in another case; and the words 'due' and 'reasonable' would be inapplicable to diligence which took the process-server repeatedly to the defendant's residence at an hour when he might be expected to be at his business office. What further attempts should be made to find the defendant elsewhere, assuming he has not been found at the place where he may be expected to be at a particular hour must in a large measure depend upon the information available to the process-server. If in fact the defendant is absent from the locality it cannot be said to be necessary for the purpose of showing that he was reasonably and duly diligent for the process-server to go over and over again. This point was dealt with by Mookerjee and Carnduff, JJ., in Sitaram Sivami v. Kalandi Patra 17 C.W.N. 999. In that case the serving peon when he went to the house of the defendant was informed that the latter had gone to Vizagapatam. He thereupon affixed a copy of the notice on the outer door of the house and it appears that the defendant did not return from Vizagapatam till three months later. The learned Judges said: It was consequently impossible for the peon to retain the summons in his custody till the return of the defendant, and as the defendant had left the jurisdiction of the Court, it was not possible for the peon to effect service upon him personally outside the jurisdiction.' If that is the proper course for the peon to pursue in such circumstances, does it follow that diligence, which would have been such as is required by the section if the process-server had known that the defendant was absent, is no longer diligence if it so happens that he is not told that the defendant is absent and that subsequently transpires, when the effectiveness of the service is in question, to have been the fact? In my opinion, provided the process-server goes to a place on a day and hour when he may expect to find the defendant there and does all that is required under the section, if he cannot find the defendant, and he could not find him whatever further steps he took by reason of his absence, then the position is such as we find it in this case, and I cannot perceive that it is necessary for the process-server to repeat his attempts to effect personal service.
51. learned Judge has used the word 'perfunctory' but I find it quite impossible to take the view that what took place on the occasion when the summons eventually was affixed upon the outer door of the house and subsequently removed by Madanlal was perfunctory.
52. practice of the Court as to proof of service and matters to be proved has obtained, possibly with modifications, for very many years and I have been led to make these observations lest by passing over the learned Judge's observations in silence I might be deemed to endorse his interpretation of the effect of the section. Where the fact of service is contested it will be a matter for detailed consideration as to how service purports to have been effected, and in each case it will be necessary to show that the process-server was reasonably and duly diligent in his attempts to effect personal service due regard being had to the particular circumstances.
53. reasons already given I agree that the appeal must be dismissed with costs. Appeal dismissed.