S.K. Austin and Others vs The Corporation Bank

Anand Byrareddy, J.—The appellants herein had filed a Miscellaneous petition under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set-aside the exparte Judgment and decree. The said miscellaneous petition was filed after a delay and hence, the petition was accompanied by an application seeking condonation of delay. The Trial Court had ordered notice to the respondent in the petition who had appeared before the court and field objections to the petition, as well as to the interim application seeking condonation of delay. Subsequently, when the interim application was listed for hearing, the Court has been pleased to reject the application for condonation of delay and consequently, the main petition. The appellant questions this action on the part of the trial Court and urges the following circumstance which according to the appellant, the Court below has failed to take in consideration, viz., that the service of summons in the Original Suit was by recourse to substituted service by way of paper publication and hence, seeking condonation of delay would be governed by Article 123 of the Schedule to the Limitation Act, 1963 which provides for the period limitation in respect of an application to set aside a decree passed exparte and the said Article contains an explanations which reads as follows:

To set aside a The date of the decree or decree passed where the summons of exparte or to re-hear notice was not duly served. an appeal decreed or Thirty days when the applicant had heard ex parte. knowledge of the decree. Explanation- For the purpose of this article, substitued service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service

The appellant would also urge that apart from the fact that for purposes of computing limitation substituted service under Rule 20 of Order V is not deemed to be due service, the trial Court has erred on yet another count viz., that u/s 141 of the Code of Civil Procedure, 1908 that the procedure provided with regard to the suits ought to have been followed in respect of the proceeding in which the impugned order have been passed viz., a proceeding under Order IX. The trial Court has failed to do so and therefore, the same requires to be set-aside.

There is much force in the submission of the counsel for the appellants for the following reasons. Firstly, the Court below has proceeded to hold that since there was service of summons by way of paper publication, it is sufficient service and that the contention there was no service of summons could not be accepted as true, is indicative of the fact that the Court has not appreciated the contention of the appellant. Though it may be a correct statement that service of summons through paper publication for purposes of Order V Rule 20 may be sufficient IP The sense that the provision lays down that such service is deemed to be personal service on the defendant. It cannot, however, be said that for purposes of computing limitation in the light of the explanation to Article 123 of the Schedule to the Limitation Act, 1963, the same holds good. The computation would necessarily have to be construed from the date of alleged knowledge of the appellant. This was an important circumstance which required to be inquired into by the Court by permitting the appellant to lead evidence in this regard and therefore, the trial Court was in error in holding that there was sufficient service for purposes of Order V Rule 20 and therefore, the petition should have been filed within 30 days from the date of decree, is a palpable error apparent and accordingly, the impugned order is liable to be set aside. Hence, the following order.

The appeal is allowed. The Order of the Trial Court is set-aside. The matter is remitted to the Trial Court for hearing on IA-I for condonation of delay and thereafter to consider the merits of the appellants'' case, if so warranted.

No order as to costs.