1980 PLP 602 (CLC)

O. V, r. 20-Substituted service-Orders for substituted service by means of publication in newspaper duly signed by trial Court and ex pane proceedings taken on defendant's non-appearance-Order of first appellate Court holding defendant having not been duly served due to an earlier order for effecting substituted service having not been signed by trial Court, in circumstances, held, incorrect and service effected on defendant by virtue of order subsequently passed not illegal. (b) Limitation Act (1X of 1908)

S. 3 read with Art. 164-Limitation-Summons not properly served on defendant and case decided against defendant ex parte -Limitation for appeal, in circumstances, held, starts from date of knowledge of ex parte decree on part of defendant.-[Limitation [Appeal (civil)]. Ch. Muhammad Taj for Appellant. Raja Intdad Ali for Respondents. Date of hearing : 18th July, 1979. This second appeal is filed against the decision of the learned District Judge, Mirpur dated 15-2-1978 by which the order dated 30-4-1977 of the Sub-Judge, Mirpur was set aside, which was in favour of the appellant holding therein that the application filed by the respondent for cancellation of the ex parte decree dated 3-4-1972 against him was beyond the period of limitation prescribed for filing an application for setting aside the ex parts decree. A declaratory suit in respect of the land in suit was brought in the Court of Sub-Judge, Mirpur by the plaintiff-appellant against Farid Khan respondent and some others. Those others are not the contestant. That suit was heard ex-parse and an ex parte decree dated 30-4-72 was passed thereof in favour of the plaintiff-appellant. It was on that that application for cancellation of the said ex parte decree was made by Farid Khan respondent. This was dismissed by the learned Sub-Judge as it was brought beyond a period of limitation. Against this order of dismissal of application by the Sub-Judge an appeal was preferred to the District Judge who set aside the order of the Sub-Judge and consequently ex parse decree was set aside and the original suit was restored to be kept pending before the trial Court; on its original number and the trial Court was further directed to proceed with the suit according to law. The learned counsel for the parties were heard and perusal of the record of the case was also made. It was through a substituted service effected on Farid Khan defendant- respondent that ex parse proceedings were taken against him by the trial Court and consequently in ex parte decree was also passed against him. The Sub-Judge was of the view that it was proper service effected on the defendant-respondent by a proclamation published in the newspaper that ex parse proceedings were taken against him by the trial Court. But the District Judge was of the opinion that the defendant-respondent was not duly served a: interlocutory order dated 6-6-71 by which a substituted service was ordered was not signed by the Sub-Judge and so ex parte proceedings ordered against the defendant-respondent were ipso facio illegal which ultimately resulted in ex pane decree against him. According to him the 'ex panel decree was thus termed as an illegal decree which was accordingly set aside. The perusal of the interlocutory orders made from time to Time by the trial Court in the original suit shows that the District Judge had an eye, only on order dated 6-6-71 and did not further take care to gay the following interlocutory Order, which clearly shows that ex parte proceedings were not the result of that order alone which was not signed by the Sub-Judge but of the order dated 7-8-71 which Independently speaks for the substituted service by means of publication of the proclamation to the newspaper therefore, it cannot be held that Substituted service effected by publication of a notice in a newspaper for information of the defendant -respondent and some others was illegal. At the most one may say that the summons was not duly served on the defendant-respondent-and that substituted service was not sufficient in allowing the ex parte decree to remain in fact if the application for setting aside the same could be made within a period of 30 days from the date of the decree nr where the summons was not duly served when the applicant had a knowledge of the decree ex-parte. In this case ex pane decree was passed on 30-4-72 and the summons after the remand of the case to the trial Court by the District Court does not appear to have a proper Service effected on the defendant-respondent and so the limitation to start in this case from the date of the knowledge of the ex parte decree on the part of Farid Khan defendant-respondent. The application for cancellation of the ex pane decree was filed on 16-3-1974 and it was claimed therein that the defendant applicant had come to know about the ex parte decree on 24-2-1974, but when he appeared before the trial Court, as a witness of his own, he unequivocally stated drat it has nearly in the middle of 4th week of January, 1974, that lie learnt about the ex parse decree passed by the trial Court against him. Thus the application for cancellation of the ex pane decree was to be filed by him at least somewhere in the last week of February, 1974, but it was not done so by him. Evidently he came to the Court after the lapse of a period of limitation prescribed. It was after his return from England in the month of January, 1974, that he gained knowledge with regard to the impugned ex parse decree against him in the very month of his arrival at home. Thus the Sub-Judge was perfectly right in dismissing the application filed by the defendant-respondent for setting aside the ex' parte decree. That being so the impugned decision of the District Judge is against law in view of section 3 of the Limitation Act read with Article 164 of the same Act and as such this appeal succeeds which stands accepted and the impugned order dated 30--d-72 of the District Judge is set aside with costs and that of the Sub-Judge is accordingly restored. S. A. H. Appeal accepted.