Non-service of summons justifies recall of an ex parte decree when substituted service lacks a proper factual foundation.

Non-service of summons can amount to a special circumstance under Order XXXVII Rule 4 CPC, justifying recall of an ex parte decree where the defendant was not served at the correct address. Substituted service cannot be ordered as a matter of course; the applicant must show that ordinary service failed and that the defendant was deliberately avoiding service. Here, the returned packet marked "intimation and unclaimed" did not by itself prove evasion, and the substituted service order lacked adequate foundation. The ex parte decree was therefore rightly recalled, the execution could not survive, and the suit was restored to proceed in accordance with law.

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Issues: Whether the ex parte decree deserved to be recalled under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908 on the ground that summons had not been duly served and substituted service had been ordered without adequate basis.

Analysis: The motion court found that the writ of summons had not been served at the defendant's correct address and that the returned packet marked "intimation and unclaimed" did not, by itself, establish that the defendant was avoiding service. It held that substituted service cannot be granted as a matter of course and that the party seeking such leave must show reasons why ordinary service has failed and why the defendant is believed to be keeping out of the way. In the absence of valid reasons for substituted service, the non-service of summons constituted a special circumstance within Order XXXVII Rule 4.

Conclusion: The ex parte decree was rightly recalled and the defendant's application succeeded.

Final Conclusion: The decree passed ex parte was set aside, the execution could not survive, and the suit was restored to proceed in accordance with law.

Ratio Decidendi: Non-service of summons is a special circumstance under Order XXXVII Rule 4, and substituted service without a proper foundation does not cure the defect for purposes of recalling an ex parte decree.

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