' This appeal is directed against the order, dated 4-9-2003, passed by learned Civil Judge, Swabi, whereby application of the appellant dated 26-7-2002 for setting aside ex parte decree dated 7-2- 2002, has been rejected.
2. Shortly narrated the facts, leading to the filing of instant appeal are, that Ncorul Amin, plaintiff (respondent No,1 herein) instituted suit on 20-7-2001 against Haji Zanzeer and Zaared Khan defendants (appellant and respondent No,2 herein) for recovery of Rs,15,49,465 ' The learned trial Court issued notices but defendants did not put in appearance, as a result whereof, an ex parte decree to the tune of Rs,10,49,465 was passed with direction to Noorul Amin to deposit the requisite court-fee within fifteen days. On 5-3-2002 decreeholder/respondent No,1 submitted the execution application, in pursuance whereof, the appellant was arrested and produced before the executing Court. He was released on bail the same day on furnishing surety bonds. The appellant moved an application on 26-7-2003, accompanied by an application for condonation of delay, seeking setting aside the ex parte decree, dated 7-2-2002. The application having been resisted vigorously was rejected per the impugned order and ex parte decree was maintained.
3. Mr. Fida. Gul, Advocate, learned counsel for the appellant contended that order of the learned executing Court is against law, facts and material on record for the reason that the requirements of Order V, rules 17 and 20, C.P.C. Have not been complied with and the impugned order was passed in haste without application of judicial mind. Mr. Ziaur-Rehman, Advocate, learned counsel for the respondent on the other hand, supported the impugned order maintaining that despite knowledge, application for setting aside the ex parte decree was filed after expiry of the statutory period of limitation and the same was rejected for valid reasons.
4. In order to appreciate the arguments of learned counsel for the parties, I consider it appropriate to reproduce below the provisions of Order V, rules 17 and 20, which read:-- "17. Procedure when defendant refused to accept service, or cannot be found.--- Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer 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 or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
20. Substituted service.--- (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(2) Effect of substituted service.--- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted time for service to be fixed.--- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
5. A perusal of the above provisions would show that after the Court satisfied itself that it is a case for substituted service, it shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house. This requirement has not been shown to have been complied with. It is further required that a copy was also to be affixed upon some conspicuous part of the house in which the respondent is known to have resided or carried on business, or in such other manner as the Court thinks fit. Substituted service has the same effect as personal service. In the instant case, the appellant has not been served properly and the substituted service is defective in the eye of law. Needless to emphasize that service through publication in the newspaper should not be resorted to unless the Court is satisfied that defendant has been properly served and he is avoiding service for reasons best known to him. Admittedly the appellant is an illiterate rustic villager having no access to newspaper. There is absolutely nothing on the file to demonstrate that he had the knowledge of proceedings pending against him but he intentionally failed to appear. The provisions of Order V, rules 17 and 20, C.P.C. Have been seriously violated in this case and the failure to comply with anyone requirement thereof nullifies the whole proceedings.
6. In the result and for the foregoing reasons, I accept the appeal, set aside the impugned order and remand the case to the Court below with direction to afford an opportunity to the parties to produce evidence and then to decide the case on merits. Since it is an old case, the learned trial Court is directed to decide the same as expeditiously as possible not exceeding six months. I make no order as to costs.