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Judgment
Ramaswami, J.—This is a civil revision petition which has been filed against the order of the learned Judge of the Court of Small Causes,
Madras, in M. P. No. 8136 of 1949 in suit No. 3174 of 1948.
The facts are: Nagappa Chowdry and Natesa Chowdry executed a promissory note for Rs. 600 on 1st June 1947 in favour of one
Govindammal. This Govindammal assigned that promissory note for valuable consideration on 27th January 1948 in favour of the plaintiff
Rangaswami Chetti. On the foot of that promissory note he filed a suit and the following step was taken. The return Ex. P. 4 states that the ladies in
the house Informed the serving officer that the defendants who are residents of Kannampalayam village had gone to Madavakkam, two miles
away, and it was not known when they would be coming back and therefore the summons were affixed on the outer-door of the house. Then the
court ordered fresh summons by registered post and the registered covers were returned with the endorsement that the addressees were not found
in the house to which the covers were addressed. The plaintiff applied for substituted service on the ground that the defendants were evading
service. The Court being satisfied that there was evasion ordered substituted service. Publication was made in Dhinamani and there was affixture
on the court notice board. The defendants were absent on the final date of hearing 2nd November 1948 & an ex parte decree was passed. The
decree-holder took out execution proceedings. On 25th September 1949 he attached the lands of the judgment-debtors at Melapakkam.
Thereupon the defendants have come forward with this petition to set aside the ex-parte decree on the ground that they had not been duly served
and that therefore they had sufficient cause to be absent on the final date of hearing and that they had come to Court within 30 days of their having
knowledge of the decree. The learned Small Cause Judge held that there had been due service and secondly, that these applicants should have
come within 30 days from the date of the decree and therefore he dismissed the application. Hence this civil revision petition.
''Under Article 164 of the Indian Limitation Act, time runs from the date of the decree or where the summons was not duly served, when the
applicant had knowledge of the decree. It will be noted that time will run from the date of knowledge only where the summons is not duly served.
Where the summons is duly served the date of the applicant''s knowledge of the decree Is immaterial, and time will run from the date of the decree.
-- Shah Shantilal and Co. Vs. T.E. Shiborwalla, , -- ''Subramania Iyer v. Krishnaswami Naidu'', 108 Ind Cas 753 (Mad) (B); -- R. Doraiswami
Aiyar Vs. C.S. Balasundaram Aiyar and Another, ; --''Sanka Aiyar v. Subbiah Iyar'', 13 Ind Cas 642 (Mad) (D). -- Baldeodas Lohea Vs.
Shubchurndas Goenka and Others, , -- Ghanshiram Baluram Vs. Misrilal Chunilal, , -- ''Harcharan v. Md. Azizullah'', AIR 1932 Oudh 326 (G).
The question therefore is as to when the summons may be said to have been duly served for the purpose of Article 164 of the Limitation Act.
The expression ""duly served"" also occurs in Order IX Rule 13 and Order V Rule 19 Civil Procedure Code. The Madras High Court has held that
the expression in Article 164, must be understood in the sense in which it is used in Order IX Rule 13, and that a summons cannot be stated to be
duly served for the purpose of this Article where it has been served on the defendant too late to afford him aft opportunity of appearing at the
hearing of the suit: -- The Stock and Share Exchange Bureau Vs. Kothari and Sons, . In other words ""duly served"" means effective service,
Under Order V, Rule 20(2), CPC it is provided that service substituted by order of Court shall be as effectual as if it had been made on the
defendant personally Shah Shantilal and Co. Vs. T.E. Shiborwalla, , -- K.B. Narasimha Chettiar Vs. K.P. Balakrishna Chetty, ; -- M.C.
Rajagopalachari Vs. P.K. Subramaniam, , Krishna Padayachi Vs. Vinayakaswamiar, , -- ''Shariba Beeby v. Abdul Salam'', AIR 1928 Mad 815
(L); -- ''108 Ind Cas 753 (Mad) (B)''; -- ''Doraiswami v. Balasundaram'', AIR 1927 Mad 507 (M); -- Gyanammal Vs. Abdul Hussain Sahib, and
-- ''C. R. P. No. 1639 of 1948 (Mad) (O)''. It follows therefore that substituted service will be equally due service for the purpose of Article 164
of the Limitation Act so long as that substituted service has been effective. That is to say, it must have achieved the object of bringing to the
knowledge of the defendant the claim against him: -- Gyanammal Vs. Abdul Hussain Sahib, . And this can begathered not only from the return but
also from the circumstances of the case and the Judge may decide the question of fact on the affidavit filed: -- Gontla Venkata Pitchayya Vs.
Sowdagar Mahomed Abdul Kareem Beg Saheb and Others, and -- ''Nithiananda Muthuswamy v. Visvanatha'', 1913 Mad WN 857 (Q).
Therefore at the hearing of the application it will be open to the defendant to show not that the order directing the substituted service was not
correct but that it was not effective: -- Gyanammal Vs. Abdul Hussain Sahib, ''; -- Ram Bharose Vs. Ganga Singh ; -- ''Chettiar Firm v. Aga M.
Shirajee'', AIR 1939 Rang 436 (S); -- ''Gajadar v. Uma Dutt'', AIR 1938 Oudh 11 (T).
The Question whether the application should have been filed within thirty days from the date of decree or within thirty days of the knowledge of
the decree by the defendant. Is dependant upon the decision of the question whether there was due service or not. If the substituted service has
been effective, limitation under Article 164 runs from the date of decree. If the substituted service has not been effective, limitation under Article
164 runs from the date of the defendant''s knowledge of the decree.
Bearing these principles in mind If we examine the facts in the instant case, it is found that the substituted service has been effective. The
defendants have been evading service of the summons first when it was sought to be served personally on them through Court and secondly by
means of registered post. This is not a case where by reason of their being away in foreign parts they could not have known of the affixture of the
summons on the outer door of their house or of the information given to the female members of the household or the coming of the postman and
going away of that postman without his being able to deliver the registered letters. On this evasion being shown to the satisfaction of the Court,
publication has been ordered in a widely circulated Tamil daily in the locality where the defendants live, viz., Dhinamani and there has been affixture
on the Court notice Board. The circumstances of the case show that the defendants could not have escaped knowing the summons and the
substituted service.
In fact where the defendants have been deliberately keeping out of the way in order to avoid service of summons substituted service will be due
service irrespective or the question of actual knowledge on his part of the suit: -- Ram Bharose Vs. Ganga Singh . The debtors in the instant case
were merely lying low as many debtors do, and awaited the passing of a decree in order to come forward at a later stage to get it set aside and
protract the proceedings and defeat and delay the decree-holder from obtaining the fruits of his decree. This case to recall the words of Ghulam
Hassan J. in -- Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, is illustrative of the difficulties which a decree-holder has to
encounter in recovering the money in execution after he has obtained the decree of Court. Therefore there has been effective substituted service in
this case.
On this conclusion, it follows that the period of limitation starts to run from the date of the decree and not from the alleged date of knowledge of
the decree. In the instant case the application to set aside the ex parte decree was after the attachment on 25th September 1949, whereas the
decree was passed on 2nd November 1948. This civil revision petition is dismissed with costs.