Jwala Prasad, J.This is an application against an order of the Subordinate Judge of Patna, dated 5th May 1930, dismissing an application made by the petitioner under Order 9, Rule 13, Civil P. C.

2. The opposite party instituted a suit for realization of taxes against Mr. A.K. Bhattacharyya and Mr. Lal Mohan Ganguly. Mr. A.K. Bhattacharyya is the owner of the house and Mr. Lal Mohan Ganguly was the tenant thereof. The suit was instituted on 12th October 1928. The defendant Mr. A.K. Bhattacharyya died during the pendency of the suit, and after his death his three sons Sudhansu Bhattacharyya, Salin Chandra Bhattacharyya and Salindra Nath Bhattacharyya were substituted as defendants on 1st June 1929. The latter two are minors and only Sudhansu Bhattacharyya is major; summonses were issued against the aforesaid three sons of Mr. A.K. Bhattacharyya, Sudhansu Bhattacharyya being described as the guardian of his minor brothers. The peon, who was entrusted with the service of summonses, took four copies of them with him: one being called the goshwara and the other three being in the respective names of the aforesaid three sons of Mr. A.K. Bhattacharyya. He tendered them to Sudhansu Bhattacharyya on 11th July 1929 but Sudhansu Bhattacharyya wrote on the back of the goshwara summons: "Received summons and a copy of the plaint" and signed it. He also endorsed:

As I am not the guardian of the minors Sailendra Nath Bhattacharyya and Sailen Chandra Bhattacharyya I am not authorized to accept summonses on their behalf.

3. He then wanted the peon to give him the summons which was in his own name. The peon could not do so. He then penned through the aforesaid endorsement and wrote another which runs as follows:

As there is no separate summons in my own name and as I am not the guardian of the minors Sailendra Nath Bhattacharyya and Sailen Chandra Bhattacharyya I am returning these

4. The peon then returned all the four copies of the summonses including the goshwara referred to above to the office, endorsing on the back of the goshwara what had happened and stating that in the circumstances aforesaid he could not serve the summonses and therefore they were being returned unserved. The Court accepted the service as sufficient in law and disposed of the case exparte on 13th September 1929, passing a decree in favour of the plaintiff.

5. On 5th November 1929, the defendant-petitioner filed an application under Order 9, Rule 13, Civil P.C., for setting aside the exparte decree on the ground that the summons was not duly served upon him therefore he could not attend and defend the case. This was refused by the Court below upon the ground that the defendant must have known of the institution of the suit against his father and latterly after his death when the peon went to him with the summonses. To my mind the Court below is wrong in this. In the case of Kassim Ibrahim Saleji v. Johurmull Khemka[1916] 43 Cal. 447 it was pointed out by the Chief Justice (Woodroffe and Mookerjee, JJ., agreeing), that the mere fact that the defendant knew that a suit had been instituted would not dispense with the necessity of proper service of summons. His Lordship observed as follows:

I may say at once that in one sense I regret that we have to allow this appeal because I have not much doubt in my mind speaking for myself that the institution of these proceedings did come to the knowledge of the defendant, and I do not think that the defendant has any merits in this application. But that is not the question. If we were to decide that what was done in this case was sufficient service of the writ, it might be taken as a precedent on other occasions. Inasmuch as I do not consider that what was done in this case was sufficient service it would not be right for us to say that it was sufficient service because we are strongly of opinion that the defendant knew of the issue of the writ.

6. That was a case of a substituted service, but the aforesaid observations apply with equal force to the case where the personal service is not effected in accordance with the mode prescribed by the Code of Civil Procedure. Similar was the view taken by the Chief Justice of the Bombay High Court in the case of Bhomshetti Jinappasheti v. Uma Bai [1897] 21 Bom. 223. In that case his Lordship observed that in the matter of service of summons the CPC does not take into account the fact that the members of the defendants family would take steps to inform the defendant of what takes place in his absence.

7. The Court below in this case has taken into consideration the fact that the petitioner in the lifetime of his father had signed the vakalatnamah on behalf of his father. With regard to this the observation of Tudball and Muhammad Rafiq, JJ., in the case of Gulab Chand v. Shankar Lal [1913] 35 All. 163 may with advantage be cited. They say:

It was the duty of the Court to serve the summons after the suit had been registered. It is true that Gulab Chand knew that a suit had been instituted but he was entitled to receive a copy of the plaint and be informed of the date fixed in order that he might be able to protect his rights.

8. The Court below has referred to my decision in the case of Nageshwar Bux Rai Vs. Biseshwar Dayal Singh, where it was held that where service of summons has been effected by delivering 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 or to affix a copy of the summons to the door of his house will invalidate it. In that case the summons was actually served upon the defendant and delivered to him and a copy was also tendered as required by Rule 10, Order 5. The defendant refused to sign the acknowledgment and he also did not return the summons so that it might be affixed to the outer door or to some conspicuous part of the house of the defendant as required by Rule 17 of the order. Therefore that case does not apply to the present case. In the present case, according to the report of the peon itself and now established by the only sworn testimony of the defendant-petitioner the summons in his name and the copy of the plaint were not tendered to him at all and were not delivered. Rule 10, Order 5 says:

Service of the summonses shall be made by delivering or tendering a copy thereof signed by the Judge, etc

and under Rule 2 the summons:

shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.

9. Accepting the case of the plaintiff opposite party that the peon delivered to the defendant the summons, but it was returned unacknowledged, in order to effect service thereof upon such refusal the procedure laid down in Rule 17 should have been followed by the peon: that is, it should have been affixed on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides, etc. Admittedly the peon did not do this, and the Court overlooking the aforesaid provisions did not apply its mind to the determination as to whether the summons was duly served or not as is required by Rule 19 of that order. That rule in circumstances aforesaid says that the Court after such enquiry as is there mentioned:

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

10. But to my mind, accepting the only evidence of the petitioner in this case, the summons was not served in accordance with Rule 10, read with Rule 2, Order 5. Under Rule 6, Order 9 the Court is entitled to "proceed ex parte" only when it is proved that the summons was duly served." In this case the Court did not at all try to find out whether the summons was "duly served." Irrespective of whether the defendant had knowledge of the suit or not in a proceeding under Order 9, Rule 13, if the defendant

satisfies the Court that the summons was not duly served...the Court shall make an order setting aside the decree as against him upon such terms as to costs, etc.

11. Therefore the finding of the Court below in this case that the defendant-petitioner must have known of the suit is of no avail. The application was made within time and it was proved that the summons was not duly served. There was no option but to sat side the ex parte decree which the Court failed to do and in this the Court refused to exercise the jurisdiction vested in it by law. The order is therefore capable of revision and is accordingly set aside.

12. As the plaintiff in this case did not try to obtain surreptitiously service of summons and took all steps to have the summons served upon the defendant and the defendant probably according to the finding of the Court below knew of the institution of the suit against him the defendant must be put upon terms and I accordingly direct that the order that the ex parte decree be set aside will take effect upon his depositing in the Court below, within two weeks after the receipt of the record in that Court, Rs. 25 as the costs of the Municipality of these proceedings.