Service of notice and proved knowledge are essential before an ex parte final decree can stand

Duly proved service of notice must be established by cogent evidence when it is denied on oath; affixture without compliance with procedural requirements and without examination of the process server was insufficient. Registered post service also failed because the postal cover, acknowledgment, and proof of posting were not proved, and a refusal endorsement could not be presumed without foundational evidence. Independent knowledge of the final decree proceeding was not established through the commissioner or unrelated miscellaneous proceedings. On these findings, the limitation objection failed, and the ex parte final decree was set aside for want of lawful service and proved knowledge.

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Issues: (i) Whether there was sufficient service of notice of the final decree proceeding by the process server by affixture; (ii) Whether there was sufficient service of notice by registered post; (iii) Whether the petitioner had knowledge of the final decree proceeding through the civil court commissioner or by participation in Misc. Case No. 45 of 1976; and (iv) Whether the application to set aside the ex parte final decree was barred by limitation.

Issue (i): Whether there was sufficient service of notice of the final decree proceeding by the process server by affixture.

Analysis: Service by personal tender or on an adult family member was not proved. The record did not show compliance with the requirements governing affixture, and the process server was not examined. In such a situation, once service was denied on oath, the burden remained on the opposite party to establish lawful service by cogent evidence.

Conclusion: Service of notice by affixture was not proved in accordance with law.

Issue (ii): Whether there was sufficient service of notice by registered post.

Analysis: The postal cover, acknowledgment, and proof of posting were not brought on record and duly proved. Although a refusal endorsement may in appropriate cases raise a presumption, that presumption depends on proper proof of the postal article and the surrounding facts. Those foundational facts were absent here.

Conclusion: Service by registered post was not established.

Issue (iii): Whether the petitioner had knowledge of the final decree proceeding through the civil court commissioner or by participation in Misc. Case No. 45 of 1976.

Analysis: No document or testimony from the civil court commissioner proved service of notice or the petitioner's presence at the survey. Likewise, the record of the miscellaneous proceeding was not proved, and there was nothing to show that participation in that proceeding necessarily implied knowledge of the pending final decree proceeding. Mere reference to another proceeding was insufficient to impute notice.

Conclusion: Knowledge of the final decree proceeding was not proved.

Issue (iv): Whether the application to set aside the ex parte final decree was barred by limitation.

Analysis: The petitioner's knowledge of the ex parte final decree was found to be only on the asserted later date, and that finding displaced the plea of limitation.

Conclusion: The application was not barred by limitation.

Final Conclusion: As lawful service and independent knowledge of the final decree proceeding were not proved, the ex parte final decree could not stand and was set aside.

Ratio Decidendi: An ex parte decree may be set aside where the party in whose absence it was passed was not shown to have been duly served and the record does not establish independent knowledge of the proceeding; unsupported presumptions cannot replace proof of service.

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