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Issues Involved:
1. Whether the service of summons was duly effected on the Defendant. 2. Compliance with the provisions of Order 5, Rule 17 of the Code of Civil Procedure. 3. Defendant's entitlement to have the ex parte decree set aside under Order 9, Rule 13 of the Code of Civil Procedure. Issue-wise Detailed Analysis: 1. Whether the service of summons was duly effected on the Defendant: The Plaintiff claimed damages for non-acceptance of goods, leading to an ex parte decree on February 12, 1945, due to the Defendant's non-appearance. The Defendant argued that he had not been served with the writ of summons. The affidavit of service, affirmed by the Plaintiff's Manib Gomasta and a Sheriff's bailiff, stated that service was attempted at the Defendant's residence on three occasions (January 13, 15, and 16, 1945) by calling out the Defendant's name and subsequently affixing the summons to the outer door when no response was received. The Defendant contended that he was at his business address during the alleged service times and that his wife, who was at home, did not hear any calls. The Court concluded that merely calling out the Defendant's name and affixing the summons without further attempts to locate him did not constitute due service. 2. Compliance with the provisions of Order 5, Rule 17 of the Code of Civil Procedure: Order 5, Rule 17 stipulates that if the Defendant is absent and cannot be found with due diligence, the summons may be affixed to the outer door of the residence. The Calcutta High Court's amendment of this rule requires that there should be no likelihood of the Defendant being found within a reasonable time. The Court emphasized that proper attempts must be made to find the Defendant, including visiting the business premises during business hours if the Defendant is a businessman. In this case, the process-server only visited the Defendant's residence during business hours, which was unreasonable as the Defendant was likely to be at his business premises. The Court held that the process-server failed to comply with the requirements of Rule 17, as he did not make reasonable efforts to ascertain the Defendant's whereabouts. 3. Defendant's entitlement to have the ex parte decree set aside under Order 9, Rule 13 of the Code of Civil Procedure: Order 9, Rule 13 allows a Defendant to apply for setting aside an ex parte decree if the summons was not duly served. The Court referred to previous judgments, including Kassim Ebrahim Saleji v. Johurmull Khemka, which established that even if the Defendant had knowledge of the proceedings, the decree must be set aside if service was not formally proved. The Court found that the Defendant was not duly served as per the provisions of the Code, and thus, he was entitled to have the ex parte decree set aside. The decision of Mr. Justice McNair was overturned, and the appeal was allowed, with costs awarded to the Defendant. Separate Judgments: Gentle, J.: Gentle, J. provided a detailed analysis of the service process, emphasizing the necessity of personal service and the inadequacy of the process-server's attempts. He concluded that the service was not in compliance with the Code's provisions, and the Defendant was entitled to have the ex parte decree set aside. Earnest Charles Ormond, J.: Ormond, J. agreed with the decision to set aside the decree, stating that even if the Plaintiff's contentions were correct, the decree had to be set aside based on the admitted facts. He highlighted the importance of serving the summons at a time when the Defendant was likely to be found and criticized the process-server's failure to make reasonable efforts to locate the Defendant.
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