The brief facts of this case are that the respondents filed a suit for specific performance of a contract for sale of a plot of land against the present applicant on 5-475, in the Court of Civil Judge, Naushero. By order dated 14-3-1975 the learned Civil Judge held the service good against the applicant and ordered the suit to proceed ex parte against him. Subsequently on 10-7-75 the trial Court passed ex parte decree against the applicant.
2. Now it is common ground that the order holding the service good against the applicant was passed on the basis of the bailiff's. Report dated 23-2-75 under Order V, rule 17, C. P. C. Stating that the applicant upon being offered the summons refused to accept it in presence of plaintiff/respondent Abdul Shamim and witnesses Anwar and Syed Sachal Shah, as a result of which the copy of the plaint alongwith the summons was affixed on the outer door of the house of the applicant. It may be pointed out that in the plaint of residence of the applicant was shown at Solangi Mohalla Tbarushah, Taluka Naushero.
3. It seems that the respondents moved an execution application in which also the Court proceeded in absence of the applicant on the groun d that the applicant had refused service of notice. Accordingly the decree was, executed. On 26-2-77; however, the applicant appeared in Court through Advocate and filed an application under Order IX, rule 13, C. P. C. On the ground that his address was wrongly shown in the plaint as he was residing at Karachi since 1974 and that he had never refused to accept the service. This application was dismissed by the trial Court by its order dated 23-5-77, which has been upheld in appeal by the learned District Judge, Nawabshah the impugned judgment dated 31-1-78.
4. The only question raised in this revision is that in the circumstances of this case the applicant was not duly served according to law and, therefore, the ex parte decree is liable to be set aside. It is urged that the addresses of the witnesses before whom the bailiff was allegedly refused service have not .Been mentioned in his endorsement as required by rule 17 of Order V, C. P. C. But the formidable contention advanced on behalf of the applicant is that the serving Officer did not file affidavit in support of his endorsement and the Court also did not examine him on oath as required by rule 19 of Order V, C. P. C. In support of this submission counsel relies on Mehboob Jan v. Sher Afzal (1).
5. I have perused the record of the trial Court and I find that no affidavit was filed by the bailiff in support of his endorsement, nor has the Court examined him on oath. Nothing has been submitted in reebok, to this contention. Clearly, therefore, the service was not effected or declared in terms of the mandatory provisions of rule 19. Such service, cannot be held valid.
6. The other ground finding favour with the learned District Judge was that since the decree had been executed on 10-2-76 the application for setting aside the decree was time barred. In the view that I have taken, limitation would obviously commence from the date of knowledge of the decree by the applicant as provided by Article 164, Limitation Act. There was, therefore, no question of the bar of limitation.
7. In the result, this revision is allowed and the ex parte decree passed by the trial Court is hereby set aside. The case will now go back to the trial Court to be proceeded with and disposed of according to law. There will, however, be no order as to costs. {{FOOT NOTE}}
(1) PLD 1952 Lah. 552 {{FOOT NOTE}}