Due service of summons and setting aside an ex parte decree depend on proper refusal proof, not mere knowledge of the suit.

Proper service after refusal under Order 5 Rules 17 and 18 requires a correct endorsement, affixation of the summons at the premises, and credible evidence of tender and refusal. Inconsistencies between the process server's endorsement and testimony, together with the absence of supporting witnesses, undermined proof of due service. The second proviso to Order 9 Rule 13 applies only where the defendant had notice of the hearing date and sufficient time to appear; mere knowledge of the pending suit is insufficient. On these facts, summons was held not duly served and the ex parte decree was liable to be set aside.

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Issues: Whether the defendant-tenant was duly served with summons in the manner required by the Code of Civil Procedure and whether the ex parte decree was liable to be set aside under Order 9 Rule 13.

Analysis: Service after refusal under Order 5 Rules 17 and 18 required a proper endorsement, affixation of the summons at the premises, and reliable witnessing of the tender and refusal. The record showed inconsistencies between the process server's endorsement and his testimony, absence of supporting witnesses, and circumstances casting doubt on the alleged service. The relevant protection under the second proviso to Order 9 Rule 13 applies only where the defendant had notice of the date of hearing and sufficient time to appear; mere knowledge of pendency of the suit is not enough. On the facts, the Court found that summons had not been duly served and that the defendant had no opportunity to contest the suit on merits.

Conclusion: The summons was not duly served, and the ex parte decree was liable to be set aside in favour of the appellant.

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