1. Facts.--Plaintiff got an ex-parte decree against the defendant which he tried to set aside on the following grounds:

(1) That the petitioner had no knowledge of the institution of the suit by the opposite party, nor did he receive any summons in the suit her did any peon go to him with the summons; and

(2) that the opposite party by taking surrepetitious proceedings fraudulently and cunningly obtained the ex-parte decree which caused serious loss to the petitioner.

2. These allegations were denied categorically by the plaintiff who alleged that the defendant had full knowledge of the suit but did not attend the Court. He also alleged that the defendant was duly served.

3. The peon who was examined on behalf of the plain tiff deposed that the summons was handed over the defendant who refused to acknowledge its receipt. The trial Court believed the story of the plaintiff and dismissed the application of the defendant.

Jwala Prasad, J.

4. [After stating facts His* Lordship dealt with the contention that defendant had no knowledge and finding against the defendant proceeded:]

5. The learned Counsel on behalf of the appellant, however, contends that the determination of that issue does not settle the case, inasmuch as upon the facts elicited during the trial of the case it is apparent that the summons was not "duly served", and consequently it is urged that the appellant is entitled to have the decree set aside under Order IX, Rule 13, of the Civil Procedure Code. That Rule lays down that an ex-parte decree shall be set aside upon the defendant (1) satisfying the Court that the "summons was not duly served" or (2) "that he was prevented by any sufficient cause from appearing when the suit was called on for hearing." The latter ground has been concluded by the finding of the Court below referred to above which we have accepted as a correct finding.

6. The question now raised for the first time before us by the appellant is therefore confined to the first ground. We have now to see whether the defendant has satisfied the Court that the summons was not "duly served". To appreciate this ground on behalf of the appellant the learned Counsel for the appellant has referred to the provisions contained in Order 5, Rule 17, of the Civil Procedure Code. It is said that after the defendant refused to sign the receipt of the summons it was incumbent on the peon to "affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business, etc." The learned Counsel says that as the peon does not say that he affixed a copy of the summons upon the house of the defendant the summons was not "duly served."

7. Order 9, Rule 13, requires the applicant to satisfy that the summons was not "duly served", and the onus is therefore upon the appellant. It was therefore for the appellant to elicit from the peon, who has been examined on behalf of the respondent, as to whether he did or did not affix a copy of the sumnons on the, house of the defendant as required by Rule 17. No attempt seems to have been made by the appellant to substantiate this ground by evidence. The evidence offered by him on this point is nil Although a point of law may be taken in appeal for the first time, yet it is subject to the well recognized Rule that the evidence on the record is complete and no further evidence is necessary to substantiate the point. There is no evidence of the requirement of Rule 17 not having been complied with by the peon, it is therefore not open to the appellant to take this point in appeal for the first time.

8. Assuming that the peon did not affix a copy of the summons on the house of the defendant, it is a question of grave doubt as to whether the personal service, such as in the present case, can be impunged as defective and illegal on the ground of irregularity alleged by the appellant. Various authorities have been cited on both sides in this case in support of their respective contentions and these are Maruti v. Vithu [1892] 16 Bom. 117, Rajendro Nath Sanyal v. Jan Meah [1899] 26 Cal. 101, Gopaldas Girdharilal v. Sayad Islu 46 Ind.Cas. 277, Diwan Chand v. Parbati [1918] 184 P.W.R. 1918 Kassim Ebrahim Saleji v. Johurmull Khemka [1916] 43 Cal. 447 and Kistler v. Tettmar [1905] 1 K.B. 39. The cases referred to above only lead to the conclusion that there has been a sharp divergence of opinion upon the point raised. Stanyon, Additional Judicial Commissioner of Nagpur, in Gopaldas Girdharilal v. Sayad Islu 46 Ind.Cas. 277 held that where the service of summons has been by delivering or tendering of it to the defendant personally the service is complete, and no irregularity by the process-server or other ministerial Officer of the Court, such as the omission of the process-server to obtain the signature of the defendant, could undo it. He would support the view upon the maxim quod fieri non debet factum valet.

9. Broadway, J., of the Punjab Chief Court, on the other hand, took a directly opposite view in the case of Diwan Chand v. Mt. Parbati [1918] 184 P.W.R. 1918.

10. The other eases, are not very directly on the point, but they seem to hold that the provisions relating to service of summons should be strictly complied with.

11. Now, the mode of service of summons has been prescribed by Rules 10 to 20 of Order 5 of the Civil Procedure Code. Rule 10 says:

Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.

12. Rule 12 requires that so far as practicable service shall he made on the defendant in person. Rule 16 requires that when the serving officer delivers or tenders a copy of the summons to the defendant personally he shall require the signature of the defendant to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Rule 17 requires that where the defendant or his agent refuses to sign the acknowledgment or the serving officer cannot find the defendant and there is no agent to accept service of summons on his behalf, etc., he shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business, etc.

13. The summons in this case was served by delivering a copy of the summons together with a copy of the plaint to the defendant personally (the defendant being personally known to the peon). The defendant refused to grant a receipt therefor, but retained the summons and the copy of the plaint. Therefore when the defendant took the summons on the plaint, the peon had no other copy to affix upon the outer door or other conspicuous part of the house. If the defendant had refused to take the summons and to sign the acknowledgment, in that case the peon would have had a copy of the plaint and the summons to be affixed upon the house of the defendant. The defendant by his conduct rendered it impossible to hare the copies affixed on the house and he cannot be permitted to take advantage of his own wrong and to plead that the omission rendered the service invalid. Now, under the Supreme Court Rules in England "A writ is personally served by giving to, and leaving with, the defendant a copy of the writ and showing him the original, if within reasonable time he demands to see it." This is what was exactly done in the present case. The defendant was in his house and copies of the summons and the plaint were given to and left with him in his hands. Therefore the requirements of Rule 17 were complied with.

14. Even if there was any irregularity, I do not think that the substantial and direct service on the person of the defendant as is prescribed by Rule 10 of Order 5 is so vitiated as to hold that the summons was not "duly served", and thus to entitle the defendant to have the ex parte decree set aside under Order 9, Rule 13. We find that upon the report of the peon, the serving officer, the Court recorded an order that the summons on the defendant was personally served. This order was in accordance with Rule 19 of Order 5 of the CPC which requires that when summons is returned under Rule 17 the Court shall satisfy itself by making such inquiry as it thinks fit and:

shall either declare that the summons has been duly served or order such service as it thinks fit.

15. The report of the peon is very clear in its term to show what transpired and that report was accepted by the Court below as a full compliance with the requirements of the law. This shows that the summons was served in this particular case in accordance with the practice prevailing in the Court below relating to personal service.

16. For all these reasons I am of opinion that upon the merits also the contention of the learned Counsel that the summons was not duly served must fail. The result is that the appeal is dismissed with costs.

Foster, J.

17. I agree with the findings of fact which have been arrived at, but I am of opinion that the previsions of Rules 17 and 19 of Order 5 of the CPC are not rigid. Where a defendant upon whom a summons has been served retains the copy that is put into his hands and refuses to give an acknowledgment, he makes it impossible for the peon to affix that copy to the house. The alternative would be that in anticipation of such contumacious conduct on the part of the defendant there should be sent out in every case a spare copy for affixing to the house and for complying with the provisions of Rule 17. That I do not think was ever intended to be a Rule of procedure. The difficulty was, in fact, foreseen when the present CPC was being prepared and it was suggested at that time that a proviso should be added the purport of which was that where the defendant or his agent refuses to sign the acknowledgment and retains the copy of the summons delivered to him, the Court may direct that the summons shall be deemed to have been duly served. That proposal was not, however, adopted, and the only conclusion I can gather is that the high authorities who superintended the drafting of the Code regarded it as unnecessary; and it appears to me to be by no means a strained interpretation of the law to consider that Rule 19 enables a Court, in such circumstances as I am referring to, to declare that the summons has been duly served, after holding that this mode of service shall suffice. Holding this view, I agree that the appeal should be dismissed.