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TMI Blog1924 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court may deem to be fit if they satisfy the Court either that the summons was not duly served, or that they were prevented by any sufficient cause from appearing when the suit was called on for hearing. It is to be observed that the two branches of the rule are disjunctive, and the plaintiff, whatever his position may be in respect of one branch, is entitled to the benefit of the section if he has satisfied the Court that he has made good his contention under the other branch. Having regard to the evidence which has been adduced before me I am satisfied that before the decree was made on the 15th April 1924, even if the defendants themselves were not cognizant of what had taken place, one Madanlal who was the authorised agent of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property of the defendants at 396, Upper Chitpore Road, and 12, Banstolla Gully, were attached in execution of the ex parte decree which had been obtained on the 15th April. I think it extremely probable that the defendants were aware that these proceedings had been taken against them before the decree was obtained, and as they took no steps either to enter appearance or to apply for leave to defend or otherwise to protect their rights, they fail to bring themselves within one branch of Rule 13, for in my opinion, they were not prevented by any sufficient cause from appearing or taking steps to obtain leave to defend. I am, therefore, loth to give them an opportunity at this late stage to put their defence before the Court. But as I have o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Singh a Sheriff's peon with 18 years' service, attended at 12, Banstolla Gully, with Ramkissen Brahmin, a gomosta of the plaintiff, for the purpose of effecting personal service upon the defendants. These two men went to 12, Banstolla Gully, where admittedly the defendants both carry on the business and ordinarily reside about 5 o'clock in the afternoon of the 15th March. There were two or three persons sitting at the outer gate, Jadu asked them if the Babus were in and the reply was that they were not in. The peon and the identifier Ramkissen then went away. They came again to the same place about the same hour on the 16th March, and again asked 3 or 4 persons at the gate if the Babus were in, and received again the same repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon whether the peon before he affixed a copy of the writ of summons to the gate, had used all due and reasonable diligence to discover the whereabouts of the defendants. In my opinion, the law on the subject is to be found stated by Sir Comer Petheram C.J. in Cohen v. Nursingdass Auddy (1892) I. L. R. 1 9 Calc. 201,202. where his Lordship observed, It is true that you may go to a man's house and not find him, but that that is not attempting to find him. You should go to his house, make enquiries and if necessary follow him. You should make enquiries to find out when he is likely to be at home and go to the house at a time when, he can be found. Before a service like this can be effected it must be shown that proper efforts had been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant had left, or would return in a few days, and in each of those eases the Court held that the circumstances disclosed in the peon's report did not justify the service being effected in a substituted, manner. The case of Kassim Ebrahim Sabji v. Johurmull (1915) I. L. R. 43 Calc. 447., was a clear one, because in that case the serving peon attended at the defendant's place of business when he thought that he was attending at his residence and in that case, as the Court held, there was no escape from holding that the writ of summons was not duly served. In my opinion, the effect of the authorties is that all available steps to effect personal service must be made before resort is had to the provisions of Order V, Rule 17. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is quite obvious that service was not duly effected. The peon, after discovering that the defendants, at the time when he attended at 12, Banstolla Gully, were not in the house, made no enquiries whatsoever of anybody as to their whereabouts. It is conceded that the defendants were in Rajputana, but without making any attempt to discover their whereabouts the serving peon, after calling on them by name to come out and receive a copy of the summons, proceeded to effect substituted service by affixing a copy of the summons to the entrance gate. In my opinion, in this case the summons was not duly served, and under these circumstances the ex parte decree and the attachment proceedings incidental thereto will be set aside, and the suit will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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