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Issues: (i) whether the ex parte decree was liable to be set aside for want of due service of summons and invalid invocation of substituted service; (ii) whether the application under Order 9, Rule 13 of the Code was barred by limitation on the alleged date of knowledge of the decree.
Issue (i): whether the ex parte decree was liable to be set aside for want of due service of summons and invalid invocation of substituted service.
Analysis: The earlier attempts at service by ordinary process, affixation and registered post did not satisfactorily establish due service. Before resorting to substituted service, the Court had to be satisfied on the materials that the defendant was keeping out of the way or that ordinary service could not be effected. The record did not show that this requirement had been properly examined, and the return on which substituted service was founded was found insufficient. The trial court therefore ought not to have proceeded on the basis that summons had been validly served.
Conclusion: The service of summons was not shown to be valid in accordance with law, and the petitioner succeeded on this issue.
Issue (ii): whether the application under Order 9, Rule 13 of the Code was barred by limitation on the alleged date of knowledge of the decree.
Analysis: The finding that the petitioner learnt of the decree on 17 June 1980 was not satisfactorily supported, as the evidence on the alleged obstruction to delivery of possession contained material discrepancies. In the circumstances, the courts below were held to have acted with material irregularity in accepting that date as the starting point for limitation. On the materials, the petitioner's case that he acquired knowledge only in February 1981 was accepted.
Conclusion: The application was not barred by limitation, and the petitioner succeeded on this issue.
Final Conclusion: The revisional application was allowed, the concurrent orders below were set aside, and the ex parte decree was directed to be set aside with restoration of the suit to the trial court for further proceedings.
Ratio Decidendi: Substituted service can be sustained only when the court is satisfied from the record that ordinary service cannot be effected or that the defendant is evading service, and a limitation objection to an application under Order 9, Rule 13 must rest on a proved date of knowledge supported by reliable evidence.
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