S.J. Hyder, J.@mdashThe applicants were the defendants in the suit before the trial court. The court issued summons through a process server fixing Aug. 19, 1978 for the hearing of the suit. The summonses are said to have been refused by the defendant-applicant and, thereafter, the court ordered to issue notice to the defendant-applicant to be sent through registered post. The notices sent to the defendant-applicants were also returned with an endorsement ''refused''. The trial court was of the opinion that the summons had been duly served on the defendants-applicants. It recorded the evidence in the case on Jan. 31. 1979 and an ex pane decree was passed on Feb. 5. 1979.
2. On July 20, 1979, the applicant moved in application for setting aside the ex parte decree passed on 5-2-1979. The application was dismissed by the trial court and then the defendant-applicant preferred an appeal against the said order. The order passed by the trial court was maintained by the court of appeal. The present revision has been filed against the said order.
3. The case of the defendant-applicant was that he was at Calcutta when the summonses were issued to him. He denied having refused to accept the service of summons. He also stated that the notice issued by the court through the registered post was not refused by him. According to him he acquired knowledge of the ex parte decree on July 7, 1979. The application for setting aside the ex parte decree dated Feb. 5. 1979 was moved on July 20. 1979.
4. Curiously enough, the two courts below did not go into the question of limitation They have not recorded any finding that way application moved by the defendant-applicant under Order IX Rule 13 of the Civil P.C (hereinafter to be referred to as ''the Code'') was moved beyond time from the date of the decree. Ex-facie a decree passed on Feb. 5, 1979 cannot be set aside on an application made as late as July 20, 1979 under the first limb of Article 123 of the Limitation Act.
5. Be that us it may the question to be considered is whether in an application moved under Order IX Rule 13 of the Code, this court has jurisdiction to set aside the order passed by the trial court which has been affirmed in appeal. It is not in dispute that the trial court as well as the court of appeal has jurisdiction to decide the lis arising out of the application moved by the defendant-applicant on July 20. 1979. If the said courts had power to adjudicate on the question before them, this court will not assist the defendants-applicants even if in its view, the court of appeal has acted erroneously and has rendered a decision with which this court does not agree. In other words, if the court has jurisdiction to decide the matter, if may act rightly or wrongly in the exercise of its jurisdiction. It is only when the court concerned has acted illegally with material irregularity in exercise of its jurisdiction that a revision at the instance of aggrieved party can lie.
6. It is submitted by the learned counsel for the applicants that the process server had not filed an affidavit as required by Rule 19 of Order V of the Code and, as such, the summons cannot be said to have been duly served by refusal on the defendant-applicant. In support of this contention, the learned counsel relies on a case of firm
7. It was in the alternative urged on behalf of the defendants-applicants that the affidavit sworn by the process server should have been in Form 11 of Appendix B of schedule II of the Code. True, it is that the affidavit sworn by the process server is not precisely in the form prescribed by the court. It is, however, no be remembered that the form prescribed in the Code is contained in a schedule. As a matter of construction, it may be said that strict compliance with the terms of the form are not necessary. It is sufficient if the affidavit is in substantial compliance of the said form. I am, therefore, of the opinion that the alternative submission urged on behalf of the defendants-applicants has no force and cannot be accepted.
8. It has been next contended that there is no declaration by the court that the summons had been duly served as recorded by the trial court. In support of the submission, learned counsel for the applicants placed reliance on a Full Bench decision of the Madras High Court in
"Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim."
Now the effect of the addition of the proviso is diat the irregularity in the service of summons is no longer a ground sufficient for setting aside an ex parte decree if the defendant had knowledge that such a decree had been passed against him. Under the Code as it stood prior to the amendment, the defendant had a right to apply for setting aside the ex parte decree even in such contingency. Before the amendment, provisions for the due service of summons, as construed by the courts had to be followed strictly. In other words, the provisions contained in Rule 19 of Order V of the Code were regarded as mandatory. After the amendment, these are at best directory. The decision in Parasuram Odayar Case (supra) was rendered before the amendment. The said decision no longer helps in view of the amendment introduced in the Code by Act 4 of 1976. I am, therefore, of the view that Rule 19 of Order V of the Code is only directory. A disobedience of the strict terms of the said Rule is no longer called for. The very fact that the court ordered that the case shall be proceeded ex parte sufficient to show that the court was satisfied that the summons had been duly served on the defendants-applicants. This is implied in the order of the trial court which was recorded in the suit on Dec. 8, 1978.
9. The result is that there is no force in the revision application which is, accordingly, dismissed.
