[1954] EACA 79

## ORIGINAL CIVIL

#### Before CRAM, Ag. J.

# NATIONAL TIMBER AND HARDWARE SYNDICATE, Plaintiffs

ν.

## ARJAN SINGH, TRADING AS SERVICE GARAGE, Defendant

### Civil Suit No. 1691 of 1953

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 9, rules 10 and 24—Application to set aside judgment by default—Attachment of movable property served on defendant but not executed-Whether application statute barred—Order 21, rule 49—Prohibitory Order executed—Indian Limitation Act, 1877, Article 164—Civil Procedure Ordinance, section 97-Whether inherent jurisdiction of Court can be invoked outwith limitation on grounds service and judgment nullities.

Following upon an invalid service, judgment was entered by default, a decree was extracted and an attempt was made to attach movable property belonging to the defendant, but the court broker, although he served on the defendant, acting upon the instructions of the plaintiffs, made a return that the attachment was unexecuted. Subsequently, a prohibitory order was served upon the defendant and executed. Some 56 days after service of the prohibitory order, the defendant applied, by motion, under the provisions of Order 9, rules 10 and 24, to have the judgment set aside on the grounds that the summons had never been served. The plaintiffs pleaded the limitation provided by Article 164 of the Indian Limitation Act, 1877. The defendant, at the hearing, invoked the inherent jurisdiction of the Court, on the grounds that the service and judgment were nullities and submitted these the Court could set aside, disregarding the law of limitation.

Held (6-10-54.—(1) The Indian Limitation Act, 1887, was wholly, formerly, part of the lex fori, applied by the Article 11 (b) of the East Africa Order in Council, 1897, and saved from a revocation of that Order by the limitation of applications.

(2) Before Article 164 can be invoked to limit an application, 30 days after a valid execution of process must have elapsed. Where the defendant was served merely with an attachment of movable property which was returned by the court broker as unexecuted, there was no execution as comprehended by the Article.

(3) A prohibitory order, executed against immovable property, as provided by Order 21, rule 49, was an execution, as comprehended by Article 164, and limitation operated against any application made under Order 9, rules 10 and 24, after the lapse of 30 days from execution thereof.

(4) Where an application invoked the inherent jurisdiction of the Court, even if competent, the Court could not entertain the application and therefore could not notice the alleged nullity of the service or judgment and by the law of limitation had no option but to dismiss the application as statute barred. In the event of hardship, the defendant had remedies.

Semble: The limitation legislated by Article 164 applied merely to the mode of summary remedy by the application and did not extinguish remedies by review or appeal.

Cases cited: Subramania Pillai v. Subramania Ayyer, (1898) I. L. R. 21 Mad. 419;<br>Abraham Pillai v. Donald Smith, (1906) 29 Mad. 234; Sakina v. Gauri Sahai, (1902) I. L. R. 24 All. 302; Nzioki s/o Mutweita v. Akamba Handicrafts Industries Ltd., (1954) Supra 46; Craig v. Kanseen, (1943) 168 L. T. 38 (C. A.); Athman bin Mahomed v.<br>Abdulhosein Karimji, (1917) 7 E. A. L. R. 5; Poorno Chunder Coondoo v. Prosonno<br>Coomar Sikdar, (1877) I. L. R. 2 Cal. 123; Gordhandas Dharamshi & Bros (S. C. Civil Suit No. 233 of 1952 unreported); Har Prasad v. Jafar Ali, (1885) 7 All. 345; Neelaveni v. Narayana Reddi. (1919) 43 Mad. 94.

#### Jamidar for appellant.

#### Amin for respondent.

RULING.—The process server after an abortive attempt to serve personally made a return that the summons was returned unserved as "the proprietor of the defendant firm was away in India". The plaintiff then requested reservice by serving on the "manager or agent of the defendant firm in terms of Order 5, rule 10, or, alternatively, by affixing a copy summons to the outer door of the defendant's premises under Order 5, rule 14". It is worth remarking that the defendant was not sued as a firm but in his own name, trading under a trade name, nor was any named agent "empowered to accept service" as required by Order 5, rule 12, nor was any named agent or manager alleged personally carrying on business for the defendant "who did not reside within the jurisdiction" to meet the requirements of Order 5, rule 10 given. As the defendant was not sued as a firm but in his own name, the provisions of Order 29, rule 3, were not available to the plaintiff. That is the process server was asked not only to serve but to find out upon whom he should serve, such finding out being properly the province of the plaintiff. Further, the plaintiff should have been aware (he was legally represented), that where the defendant is known to be out of the jurisdiction, the provisions of Order 5, rule 14, are of no avail. This rule applies in the case of a defendant, who, while either ordinarily residing in a house or carrying on business in certain premises cannot be found by the process server after using all due and reasonable diligence. The mere temporary absence of the defendant or his absence overseas does not justify the process server in affixing a copy of the summons to the door of the house or premises: Subramania Pillai v. Subramania Ayyer, (1898) 21 Mad. 419; Abraham Pillai v. Donald Smith, (1906) 29 Mad. 324. This applies the more especially when the serving officer knows where the defendant is or that he is out of the jurisdiction; Sakina v. Gauri Sahai, (1902) 24 All. 302. The object of service is to give notice, and notice cannot be assumed when a defendant is known to be in India merely after affixing a copy of the summons to the door of his premises. In such circumstances the proper course, in the absence of other modes of service, is to apply to the Court for an order either to serve out of the jurisdiction or for substituted service. In this instance, the process server, without making any further inquiry, affixed a copy of the summons to the defendant's office door. His return read: "By order of the Supreme Court (Chief Clerk) I went ... and posted the summons. . . ." The service was therefore a mere nullity. Now, under the Indian Code of Civil Procedure, the Court, before entering judgment, is mandatorily required to inquire into the service before proceeding to hear the plaintiff ex parte. According to Kenya Order 5, rule 16, provided an affidavit of service is returned, the Court has a discretion to accept the same without further inquiry. It is then obliged to make a declaration that the summons has been duly served. In the instant case, the Deputy Registrar entered judgment in default of appearance under the provisions of Order 48, rule 2, a mode not available under the law of civil procedure in India. No declaration appears on record; but it must be assumed that he did not inquire into the service, else he would have declared the same void.

$\overline{1}$

The defendant has applied to this Court by motion to have this judgment set aside under the provisions of Order 9, rules 10 and 24. A nullity is something

which a person affected by it is entitled to have set aside ex debito justitiæ under the exercise of the Court's inherent jurisdiction as saved by section 97 of the Civil Procedure Ordinance. An order made on a summons which has not been served was set aside as a nullity in Craig v. Kanseen, (1943) 168 L. T. 38 (C. A.), and this Court has set aside as a nullity a judgment by default of appearance in Nzioki s/o Mutweita v. Akamba Handicraft Industries Ltd., supra p. 46, the service of the summons having been ruled a nullity under Order 9, rule 24. In that case, however, no issue of limitation was before the Court. It is an issue which by the terms of section 40 of the Limitation Ordinance (Cap. 11) must be pleaded specifically. In this instance the plaintiff has pleaded limitation. He pleads Article 164 of the Indian Limitation Act, 1877. This Act was applied to the Colony by Article 11 (b) of the East Africa Order in Council, 1897, and is saved from revocation of that Order by Article 11 of the Kenya Colony Order in Council, 1921, and so remained part of the lex fori. (Athman bin Mahomed v. Abdulhosein Karimji, (1917) 7 E. A. L. R.) The Act applied to applications made under the Civil Procedure (Revised) Rules, 1948. But the Act has been repealed by section 41 of the Limitation Ordinance save in so far as it relates to prescription. Article 164 of the Act is preserved by the proviso to section 41 of the Limitation Ordinance. Article 164, read with section 4 of the Act, runs: ... every application made after the period of limitation prescribed therefor by the second schedule hereto annexed shall be dismissed . . . by a defendant for an order to set aside a judgment ex parte; 30 days from the date of executing any process for enforcing the judgment".

The plaintiff claims that he executed attachment of the defendant's movable property on 16th January, 1954, and exhibits a service of the attachment on the defendant of that date. The application is dated 28th April, 1954, and so the plaintiff maintains is statute-barred. Although the underlying principle behind Article 164 is that the attachment amounts to notice of the suit to the defendant and on failure on such notice to seek his remedies within 30 days, he is stopped from recourse to Order 9, rules 10 and 24, nevertheless the governing word in the article is "executing". It is the return of the court broker which defines whether or not there has been an execution on the date claimed and the return runs: "As per instructions of Messrs. Amin and Patel, advocates for the plaintiff, I have released the vehicle attached herein and return herewith this warrant of attachment and sale order, *unexecuted*.... "That is the court broker has returned that the attachment never was executed. I refer to the case of Poorno Chunder Coondoo v. Prosonno Coomar Sikdar, (1877) 2 Cal. 123, where it was held that "execution" in terms of Article 164 meant the actual process of attachment in execution of the judgment debtor's person or property. It was held that mere notice of execution was not sufficient process to bring into play Article 164, nor did the time of limitation run from the service of mere notice. There is logic in this in that a person need not look to his remedies unless and until he is made aware of an actual execution of his property (that is by a decree-holder who is certain of his remedy) and need not heed a mere threatened execution. I refer to Order 21, rule 21, of the Civil Procedure (Revised) Rules where it is made mandatory upon the officer entrusted with the execution of process to endorse thereon the day on and the manner in which it was executed or if it was not executed the reason why and to return to process with such endorsement to the Court. In my view, where an officer has made a return, as he has done in the present case, that he has not executed the process and has duly endorsed his reasons on the warrant and made a return, no execution can be held to have taken place and, in that even, Article 164 cannot be pleaded in limitation. That is, the whole of the plaintiff's argument on this process falls to the ground.

But there is another aspect. The plaintiff applied for and obtained a prohibitory order in terms of Order 21, rule 49, on 26th February, 1954. The order was executed by affixing a copy on the property affected and also upon the walls of the Court House. This was done on 3rd March, 1954, according to the return of the process server. In Gordhandas Dharamshi & Bros. v. Dhan Kaur, (Supreme Court Civil Suit No. 233 of 1952, unreported), Rudd, J., held that where a prohibitory order was executed, although not served upon the defendant, nevertheless, after the lapse of 30 days, Article 164 applied and the defendant was statute-barred from applying to have an *ex parte* judgment set aside. That is, the learned Judge held not only that Article 164 applied to applications under Order 9, rule 24, in the Colony, but also that a prohibitory order executed in terms of the Order 21, rule 49, operated in limitation without service upon the defendant. Presumably the notice was constructive. In the present case, not only was Order 21, rule 49 (2), complied with, but also the defendant was served personally with a copy of the order on 3rd March, 1954. Even looking to the principle of notice implicit in Article 164, the defendant did have notice on 3rd March, 1954. His application is dated 28th April, 1954, some 56 days later. Little sympathy can be extended to a defendant in these circumstances and it is not unreasonable to carry the principle in Article 164 to its logical conclusion that, when a defendant after execution of process, does not take any steps to have the judgment set aside, his reason is that he accepts that the plaintiff's claim is just. Even if he had had notice of the suit by summons, it is to be assumed he would not have taken steps to dispute the plaintiff's claim.

The defendant, however, argues that, as the summons was a nullity, the court should, by reason of its inherent powers, set aside the *ex parte* judgment which too is a nullity and cannot be founded upon and, in the exercise of its inherent powers, the court is not restricted by Article 164 of the Indian Limitation Act. This aspect has, however, been carefully considered in the Indian Courts. I refer to Har Prasard v. Jafar Ali, (1885) 7 All. 345, where it was held that a Court which admits an application to set aside an ex parte decree after the true period of limitation has expired, acts in the exercise of its jurisdiction, inherent or otherwise, illegally and that the term "jurisdiction" must be understood in its broad legal sense to signify the power of administering justice not only according to the means which the law has provided but also subject to the limitations imposed by the law upon the judicial authority.

It is important to keep in mind that what the Court has to decide is not whether or not the defendant has no remedy, but merely whether he has any remedy by application. It seems clear according to Mulla's Code of Civil Procedure, 10th Ed., page 595, in the notes to Order 9, rule 13, that that rule provides only one of three remedies in the event of an *ex parte* decree being passed. According to the learned jurisprudent, the aggrieved defendant may appeal from the *ex parte* decree or he may apply for a review of the judgment or he may apply under the rule for an order to set aside the *ex parte* decree. The learned author is careful to discriminate between the limitation which is applied to applications under the rule and the absence of limitation in the case of the other two available remedies. In the instant case, even although the defendant appears to have his summary remedy by application statute-barred, that does not mean to say that he cannot invoke other remedies to which no limitation applies. It would seem, therefore, whether the application is made under the rule or to invoke the inherent jurisdiction of the Court, the result must be the same: it is the remedy selected that is barred. The learned constructors of the Indian Civil Procedure Code limited the summary remedy to avoid holding up executions by fictitious applications, to meet the difficulties peculiar to the

Indian environment. No such limitation applies in England. It is doubtful if the limitation imposed in this Colony is nowadays desirable. The summary remedy is cheap, quick and effective.

The issue continued to trouble the Courts in India and became the subject of an order of reference to a full bench of the High Court of Madras in Neelaveni v. Narayana Reddi, (1919) 43 Mad. 94. The reference was: "Has a court power apart from the provisions of rule 13, Order 9, of the Civil Procedure-Code to set aside an ex parte decree passed by itself?" In other words could the inherent power of the court under section 155 of the Code be invoked to set aside its own ex parte decree, unless provided for by Order 9, rule 13? The court held, not without some doubts, that it had no power to do so. It cannot be overlooked, however, that one of the prime grounds for the decision was that in India there was in existence a Code and a Code is presumed exhaustive and therefore the rule exhausted the remedy. In Kenya no codification of the law of civil procedure has been attempted and, in the absence of this ground, it is probable that that decision would not be entitled to weight here. But the question is academic in this suit because the Kenya rule affords, as a ground for an application, non-service of the summons, which is alleged here. While it may be that an ex parte decree in Kenya could be set aside on other grounds than those provided by the rule here nevertheless any such application to the inherent jurisdiction of the Court would have to be dismissed whenever Article 164 is properly invoked. It may be that the judgment and the decree are nullities, but this cannot now be brought to the notice of the Court by an application in this suit. In the event of hardship, as was said in Neelaveni's case "the remedy could be obtained either by appeal or by review".

The application is dismissed with costs.