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Judgment
It is of course desirable that all Courts should observe the mandatory provision in Order 5, Rule 19, Civil Procedure Code, and ""either declare
that the summons has been duly served or order such further service as it thinks fit."" But we do not think that the absence of such an express
declaration will involve as a necessary consequence a rinding that a summons has not been duly served. In the present case no less than four
summonses were taken out to the appellant and they were all returned with reports that the copies had been affixed because the appellant was
absent in some place or other. After the fourth return of the kind, the Court said on 24th March, 1933, ""defendant 7 affixed on 15th March, 1933,
said to have gone to Tirupattur by the inmates of the house. Called absent. Defendant 7 ex parte."" In the circumstances of this case we see no
difficulty in saying that there is here an implied, though not an express, declaration of sufficiency of service on the seventh defendant. The decisions
in Ashagappa Chetti v. Ramanathan Chettiar (1932) 64 M.L.J. 629 and A. Ramaswami Chettiar Vs. Chinnappa Chetty, are not in point.
Moreover we must agree with the learned Sub-Judge that the appellant really knew all about the suit as it was going on. The mortgagor-defendants
were his son-in-law and his grandsons and it is not possible to believe his statements that he knew nothing about the suit until after it has been
decreed.
We agree with the le irned Sub-Judge that the appellant did not prove that he was prevented by any sufficient cause from appearing when the
suit came on for trial.
We therefore dismiss this appeal with costs, and we do so with no compunction, since the appellant has not and never has had any defence of
his own to raise. He wants now, he says, to press a plea actually taken at the trial on behalf of the mortgagor-defendants, but not substantiated by
their Court guardian.