' The appeal is addressed against the order of the learned District Judge, Mirpur, passed on December 16, 1992, whereby ex parte decree passed by the learned Additional Sub-Judge, Mirpur, on February 29, 1992, was maintained.
2. Mst. Ahmeda Bi, brought a suit for declaration that the power of attorney purported to be executed in favour of Abdul Khaliq, defendant No,1, on April 18, 1990 was fictitious and forged one. It was ineffective on the right and title of the plaintiff in respect of the suit land. She also assailed the gift-deed executed by virtue of the aforesaid power of attorney by Abdul Khaliq, in favour of Mst.
Sardar Begum, on April 30, 1990, registered on May 2, 1990.
3. It was averred that the plaintiff was a co-sharer in the suit land, situate in village Joian, Tehsil Mirpur. Abdul Khaliq, defendant, by virtue of fictitious and forged power of attorney on behalf of the plaintiff, purported to be executed on April 18, 1990, transferred the suit property through the gift deed in favour of Mst. Sardaran Begum. The suit was filed on May 30, 1991. The summons were issued to the defendants. It was reported that Abdul Khaliq had left for England and Mst. Sardaran Begum was not available in her house. The report was made on the summons issued in the light of the order of September 3, 1991. The learned Sub-Judge ordered substituted service on September 28, 1991. Mst. Ahmeda Bibi died during the pendency of the suit. Her legal heirs were arrayed as plaintiffs. The ex parte decree was passed on February 29, 1992. An appeal was preferred before the learned District Judge. The aforesaid ex parte decree was passed by the learned Sub-Judge, Mirpur. The appeal was dismissed for want of limitation.
4. It is contended by the learned counsel for the appellant that the appellant was not duly served.
The ex parte decree was passed against her without due service. In such situation, the appeal was within time as, the limitation commenced from the date of knowledge. The counter-contention on behalf of the learned counsel for the respondent is that due service was effected on the appellant.
On passing of ex parte decree, she was eligible to bring her appeal within a period of 30 days from the date of the decree.
5. Two important propositions have been raised in this appeal:-
(i) It is ascertained as to whether due service was effected on the defendant-appellant or not; and
(ii) that what was the limitation for filing the first appeal ?
' The rules of procedure applicable to service of summons are covered by Order V, Rules 12, 17, 19 and 20, C.P.C. Rule 12 postulates that wherever it is practicable, service shall be effected on the defendant in person, unless he has an agent empowered to accept service. In such case, service on the agent shall be sufficient. Rule 17, next, provides that where the defendant or his agent or some other authorised person refuses to acknowledge the service or where the serving officer, after using all due and reasonable diligence, cannot find the defendant and there is no agent so empowered to accept service, nor any other person was authorised, it was enjoined upon the serving officer to affix a copy of the summons on the outer door of residence of the defendant or some other conspicuous part of the house in which the defendant ordinarily resided or carried on business or personally worked for gain. The summons was to be returned to the Court with a report endorsed thereupon, containing the circumstances of his report. The report was also to contain the particulars of the person who identified the house of the defendant and in whose presence the summons was affixed.
6. Rule 19, is co-related to Rule 17. Under this Rule, it was enjoined upon the Court, on return of the summons in the light of the provisions of Rule 17, to examine the serving officer on oath, in support of the report endorsed on the summons.
7. The last mode of service has been coined in the shape of scheme postulated under Rule 20 of Order V, C.P.C. It provides that 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 by affixing a cony thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house in which the defendant is known to have lastly resided or carried on business or personally worked for gain, or in such other manner as the Court may think fit. Sub-rule (2) was incorporated as approval of mode of service. It laid down that the service substituted by the order of the Court shall be as effectual as it has been made on the defendant personally.
8. In present case, it appears from the record that none of the conditions laid down under Rules 17, 19 and 20, C.P.C. Have been complied with. The process-server who was entrusted with the summons to effect service on the defendant, was not examined by the Court as provided under the provisions of Rule 19. Therefore, it cannot be deemed that the service was duly effected on the defendant under the aforesaid provisions of law.
9. The case of respondent No,1, argued before this Court, has been that the substituted service was validly effected on the defendant as it was effected by publication of proclamation in a weekly newspaper, Mirpur. It is correct to suggest that substituted service was ordered by the learned Sub- Judge as envisaged under Rule 20 and proclamation was also published in due course of time, but the fact remains that the order pertaining to substituted service was defective as it did not fulfil the conditions preceding to issuance of directions of substituted service. There is no mention in the order that the Court was satisfied that the defendant was keeping out of the way for the purpose of avoiding the service or that for any other sufficient reason, the summons could not be served ordinarily on the defendant, by affixing copy of the summons on the house of the defendant or some other conspicuous place in the Courthouse etc. In absence of any such satisfaction on relevant conditions laid down under Rule 20, the order cannot be protected. It is, therefore, held that no due service was made on the defendant in this case.
10. The learned District Judge failed to apply his mind to the aforesaid facts and law available in the case. The order of the learned District Judge is in a mechanical fashion as no care was taken even to go through the provisions of law, to substantiate the impugned finding.
11. It is admitted that the limitation for filing of appeal against the decree has been prescribed in Article 164 of the Limitation Act. Under the provisions of Article 164, the limitation of 30 days starts from the date of decree where due service has been made. In the case where due service is not proved to have been made on the defendant/judgment-debtor, the limitation starts from the date of knowledge of the judgment-debtor. In the present case, it is already held that the summons was not duly served on the defendant. Therefore, the limitation of 30 days would not commence from the date of decree but it would start running from the date of knowledge.
12. In paras. 3, 4 and 5 of the pleadings before the learned District Judge, it has been sufficiently explained by the appellant that under what circumstances due service was not effected on her and how she acquired knowledge of the ex parte decree. It was explained that on June 16, 1992, a brother of the defendant-appellant visited the Court premises where he acquired knowledge of the ex parte decree against the appellant. In support of the aforesaid question of fact, the appellant filed an affidavit alongwith the memorandum of appeal. The affidavit of the appellant was not controverted by the respondent. An unrebutted evidence has, therefore, to be admitted as valid. In this view of the matter it is accepted that the appellant acquired knowledge of ex parte decree against her on the date described above. Taking the period of knowledge under consideration, the appeal shall be deemed to have been filed within time.
13. The reasons listed above lead to the conclusion that the ex parte decree was passed without effecting due service of summons on the defendant appellant and the first appeal was within time.
The appeal is, therefore, accepted. The order of the learned District Judge and the ex parte decree passed by the learned Additional Sub-Judge are hereby set aside and the case is sent to the learned Additional Sub-Judge, Mirpur, for its decision on merits. Parties shall appear before the Additional Sub-Judge, Mirpur, on June 30, 1993, and the defendant-appellant shall submit her written statement without fail.