1. ' The plaintiff-Bank filed Suit No,1083/78 to recover a sum of Rs,12,05,505.05 against the defendants.
2. The first defendant is a company incorporated under the Companies Act, 1913. The defendants 2 to 7 guaranteed the repayment of the plaintiffs dues. In the suit no personal service of summons was effected on the fourth and seventh defendants, but summons had been served by substituted service and by publication in Morning News. The first and third defendants filed their joint written statement. The secondand fourth to seventh defendants remained absent, they were set ex parte on 3-5-1980 and subsequently on 21-10-1981 ex parte judgment was passed against them. On 2-10- 1984 the seventh defendant filed an application (CMA 4474/84) for setting aside decree on the ground that he was not personally served with summons in the suit and he became aware of the proceedings on 3-11-1984 when notice of execution No,27/83 was served upon him. On 6-1-1983 the fourth defendant filed an application (CMA 294 of 1983) on tin ground that he was not personally served with summons in the suit and became aware of the proceedings on 28-11-1982 when the notice of execution application No,40/82 was published in the Daily Morning News which drew the attention of one of the friends who informed him.
3. ' The said two applications were resisted by the plaintiff on the grounds that the fourth and seventh defendants had sufficient notice of the proceedings and they came to know of the proceedings only on 28-11-1982 and 6-1-1983 was not true. The other ground was that CMA No,294/83 filed by the fourth defendant is barred by time.
4. The application was filed on 6-1-1983 instead of filing on 27-12-1982. It is an admitted position that the limitation period prescribed for filing of application expired during winter vacation. The application was presented in this Court on 6-1-1983. The objection is that if the applical ion would have been filed on 2-1-1983 it would have been in time. Since the application has been presented on the reopening of the day the application is time-barred. Section 4 of the Limitation Act provides that where period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court reopens. This section of Limitation Act, in clear terms gives right to a party to file an appeal, application or a suit on the reopening day of the Court where the period of limitation expired during the period when the Court was closed. Mere fact that there was some arrangement in the office of the Court during the period of the Court was closed, and pursuant to that arrangement the application filed on the reopening of the Court would not render the institution of such application beyond time. In the case of Fazal Karim and others v. Ghulam Jilani 1975 SCM R 452 wherein the Honble Supreme Court in similar circumstances a petition which was filed during the vacation was resisted on the ground that the limitation for filing of such petition expired earlier to the filing of the application and as the petition was not filed on the reopening day of the Court but earlier therefore it was time-barred. The Hon'ble Supreme Court repelled the contention and held that the word "office" of the Court is not synonymous with the word "Court" and observed that while the office of the Court may remain open during the vacation for reception and institution of fresh proceedings it does not necessarily mean that the Court is also open. I, therefore, find no substance in this objection which is overruled. CMA 294 of 1983 is adjourned to date in office.
5. ' It is contended on behalf of the defendant No,7 that admittedly he was not personally served in the suit as he left Pakistan for Canada in July, 1978 and commenced his own business in Canada after fulfilling all legal requirements and only returned to Pakistan in January, 1983 after winding up the business in Canada. He also annexed to the application photostat copy of the relevant entries in his International Passport.
6. ' The learned counsel for the plaintiff submits that in this case there has been a due service of summons in the suit on the defendant No,7 and that therefore he is not entitled to seek to set aside the ex parte decree.
7. ' I have perused the record of the case. The application under Order 5, rule 20, C.P.C. Was filed on the ground that the defendants 2, 4 to 7 were not traceable and/or avoiding service of summons.
8. The report of the bailiff shows that the defendants Nos.4 and 7 were out of Pakistan. In. This view of the matter I am satisfied that the conditions laid down in Order 5, rule 20, C.P.C. Were not present to treat the service as due service, the defendants are entitled to set aside the ex parte decree.
9. It is not in dispute that the defendant No,7 in this case was not personally served. He had been served by substituted service by publication in a local newspaper while he was out of Pakistan. This service cannot be treated as sufficient service. Therefore, it should be taken that he was not duly served as per the provision of Order V, rule 20, C.P.C.
10. ' Order 9, rule 13, C.P.C. Sets out two alternative grounds for having ex parte decree set aside. The applicant satisfied the Court that (1) the summons was not duly served, or (2) he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Even if there has been a proper service of the summons, the defendants can show sufficient cause for non-appearance as an alternative ground for invoking Order 9, rule 13 provided such an application is not barred by limitation and that though for the purpose of limitation knowledge of the suit will be material, a vague knowledge that a decree had been passed by some Court is not enough and it must be found that the defendant had knowledge that a particular decree had been passed against him in a particular Court in favour of a particular person and for a particular sum. Therefore, if the defendant/applicant is shown to have no knowledge of the suit or the decree, he can be taken to have shown sufficient cause for non-appearance, so as to enable him to invoke Order IX, Rule 13, C.P.C.
11. ' Learned counsel for the plaintiff pointed out that the defendants Nos.1 and 3 have been duly served and they, in fact, took part in the suit in the further proceedings. The defendant No,7, used to visit Pakistan and therefore be deemed to have knowledge of the suit. I am of the view that a vague knowledge about certain proceedings is not enough for the limitation to operate and that a specific knowledge that a particular decree has been passed against him in a particular Court and for a particular sum has to be attributed to the defendant so as to say that he had such knowledge 30 days before the date of the application.
12. Having regard to the fact that in this case all the summons from the Court had been sent only to Defence Authority address and not to Canada address where he was residing at the relevant time, his non-appearance before the Court on the date of trial can be taken to be for a sufficient cause.
13. ' In this view the application has to be allowed and this is accordingly allowed. The ex parte decree will stand set aside, against him. The defendant No,7 is directed to file written statement within three weeks. There will be no order as to costs in this case and No,5251/84 is adjourned to a date in office.