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Judgment
This is an application against an order restoring a suit to file which had been dismissed ex parte. The defendants are said to have been served by
substituted service but they did not appear, and not until a year after the date of the decree did they apply to set it aside. The District Munsif has
merely found, because he thinks that the defendants had a good defence to the suit, that they could not have had notice, and if they had been
properly served, they would not have failed to appear, and finding that they could not have been properly served, he restored the suit. If, however,
substituted service was effected under Order 5, Rule 20, such service is as effectual as if it had been made on the defendant personally, and must
be deemed to be due service within the meaning of Article 164 of the Limitation Act. This view has been held in two previous cases, Doraiswami
Aiyar v. Balasundaram Aiyar (1926) 52 M.L.J. 477 and Narasimha Chettiar v. Balakrishna Chetty (1926) 52 M.L.J. 512 to the latter of which
one of us was a party. The contrary view was taken by Srinivasa Aiyangar, J., in Venkatachalam v. Subbayya (1927) 54 M.L.J. 448 but in
coming to his conclusion he had not adverted to the provisions of Order 5, Rule 20, Clause 2 and with all respect we are unable to accept his view
as against the provisions of that section.
A further contention is raised that no revision, petition u/s 115 can be entertained in the present case. As however the District Munsif has
refused to take evidence merely because he thinks that certain facts are probable, we think that this is certainly a material irregularity in the exercise
of his jurisdiction. There are allegations in the respondent''s affidavit to the effect that he was fraudulently kept out of knowledge of the proceedings
in Court, and the question of whether substituted service was duly effected has not been tried by the District Munsif. We must, therefore, set aside
his order and remand the petition to him for fresh disposal after admitting any evidence on this point which may be adduced and in the light of the
above remarks.
Costs of this petition will abide the result.