Judgment Chattreji, J. 1. This is an appeal by the pltf. under cl. 10, Letters Patent, from the judgment of Shearer J. who, reversing the concurrent decisions of the Courts below, dismissed the pltf.s suit. 2. The suit was for setting aside a certificate sale & for confirmation of possession or, in the alternative, recovery of possession of the suit land. The suit was brought on the allegation that there was fraudulent suppression of notice under S. 7, Public Demands Recovery Act (Iv [4] of 1914) & also of other processes under the Act. 3. The defence, in substance, was that the notice & processes were duly served & that the suit was barred under S. 46, Public Demands Eecovery Act. 4. Both the Courts below held that there was no fraud & therefore, the suit could not lie under S. 46 of which the relevant portion is as follows: "Provided that a suit may be brought in a civil Court in respect of any such question upon the ground of fraud." The Courts, however, held that the notice required by 8. 7 was not served & therefore, the suit was maintainable under S. 45 of the Act. The material portion of S. 45 runs as follows: "Notwithstanding anything hereinbefore contained, a sale of immovable property in exeoution of a certificate shall not be hell to be void on the ground that the notice required by S. 7 has not been served; but a suit may be brought in a civil Court to recover possession of such property or to set aside such sale on the ground that such notioe has not been served: Provided that no such suit shall be entertained: (a) if instituted more than one year from the date on which possession of the property was delivered to the purchaser." Both the Courts below found that the suit was brought within one year from the date on which possession was delivered to the auction purchaser. They, therefore, concurrently decreed the suit. 5. On second appeal, Shearer J. was of opinion that S. 45 of the Act could not apply unless it was found that the notice under S. 7 was not served at all. They, therefore, concurrently decreed the suit. 5. On second appeal, Shearer J. was of opinion that S. 45 of the Act could not apply unless it was found that the notice under S. 7 was not served at all. He considered that the finding of the lower appellate Court was not that the notice under S. 7 was not served at all, but that there was an irregularity in the service of the notice. In this view, he held that the civil Court had no jurisdiction to set aside the sale. 6. Mr. B. C. De on behalf of the appellant contends that Shearer J. was entirely wrong in assuming that the lower appellate Court merely found that there was an irregularity in the service of notice. Mr. De relies on the following passage in the judgment of the lower appellate Court: "That being so, there wa3 no servioe of the notice on the pltf. under 8. 7, Public Demands Recovery Act." This apparently means that there was no service at all. But this finding must be read with the actual discussion on the point. The discussion begins with these words: "I would, therefore, confine myself to the consideration whether the notice under S. 7, Public Demands Recovery Act, was duly served on the pltf. appellant according to law." The Court then proceeds: "I take up the first point about service of the notice. Ex. B is the notice under S. 7, Public Demands Reoovery Act. The servioe report of the peon shows that he could not meet Darshan Raut the pltf. & on enquiry he learnt that he had gone to Sitamarhi fair. Hence he hung up the notice at his house facing east. I have now to see as to how far such a service can be deemed to be valid in law. R. 4, Sch. II which has a legal force says that where the certificate-debtor cannot be found, & has no agent empowered to accept service of the notioe on his behalf, service may be made on any adult member of the family of the certificate-debtor who is residing with him. The contesting deft. 2 who figured as D. W. 5 in this suit admits in his deposition that Darahan Raut got four sons, out of whom the eldest is aged 28 years & the second son is aged 26 years. The contesting deft. 2 who figured as D. W. 5 in this suit admits in his deposition that Darahan Raut got four sons, out of whom the eldest is aged 28 years & the second son is aged 26 years. The service report of the peon does not show that he made any attempt to find out any adult member of the family for handing over the notice. There is also no whisper in the evidence adduced before the learned Munsif that any attempt was made by the Eerving peon to find out any adult member of the pltf.s family." Next follows the passage relied upon by Mr. De which has been already quoted. Beading this whole discussion, it is apparent that the appellate Court proceeded on the assumption that the notice was served in the manner stated in the peons report, but held that such service could not be deemed to be valid in law. In other words, there was an irregularity in the service of the notice, & in the opinion of the appellate Court, irregular service amounted to non-service. 7. Mr. Dea contention is that if the notice was not served, as required by law, there was no service at all. S. 7 of the Act provides: "Where a certificate has been Sled in the office of a certificate officer under S. 4 or S-6, he shall cause it to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form & a copy of the certificate." The rules which were made by the Board under S. 48 of the Act for service.of notice are to be found in Sch, II. R. 3 in this schedule provides: "Where it is practicable, service shall be made on the certificate-debtor in person unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient." R. 4 then provides: "Where the certificate debtor cannot be found, & has no agent empowered to acoept service of the notice on his behalf, service may be made on any adult male member of the family of the certificate-debtor who is residing with him." R. 5 provides for acknowledgment of service to be taken by the serving officer from the person to whom the notice is tendered. R. 6 next provides: "Where the certificate debtor or his agent, or such other person aforesaid, refuses to sign the acknowledgment, or where the serving officer, after using all due & reasonable diligence, oannot find the debtor, certificate & there is no agent empowered to accept service of the notice on his behalf, nor any other person on whom service can be made, the serving officer shall (a) affix a copy of the notice oa the outer door or some other conspicuous part of the house in which the certificate debtor ordinarily resides or carries on business or personally works for gain; or (b) if there be land affected by the notice, affix a copy of the notice on some conspiouous place in the office of the Certificate Officer & also on some conspicuous part of the land, & shall then return the original to the Certificate officer by whom it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, & the name & address of the person (if any) by whom the house or land was identified & in whose presence the copy was affixed." Thus, Rr. 3, 4, & 6 prescribe, in order of precedence, three modes of servioe, of which the second (R. 4) is to be adopted, failing the first (R. 3), & the third (R. 6) to be adopted, failing the first & second. 8. In the present case, according to the peons report, service was effected under R. 6. The lower appellate Court held that the service was not valid in law, because the peon did not make any attempt to serve the notice on the adult male members under R. 4, & consequently, such service must be treated as if there was no servioe at all. But if the notice was actually served under R. 6, can it be said that there was no service at all? Take a case where the certificate-debtor has an agent empowered to accept service of the notice on his behalf (R. 3), but the peon without going to the agent serves the notice on an adult son of the debtor at his house (R. 4). Can it be reasonably said that this was no service at all? In my opinion, certainly not. Can it be reasonably said that this was no service at all? In my opinion, certainly not. All that may be said is that the service was irregular. Is there any difference in principle between such hypothetical case & the present? 9. To hold that a notice which has been actually served, though not in strict conformity with the prescribed rules, cannot be said to have been served at all will be a contradiction in terms. To understand the true import of the words "notice has not been served" in S. 45, it will be pertinent to compare the wording of 8. 9 (1) of the same Act which also refers to notice under S. 7. The relevant portion of S. 9 (1) is as follows: "The certificate debtor may, within thirty days from the service of the notice required by S. 7, or, where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the certificate officer......a petition.....denying his liability, in whole or in part." It will be noticed that here the word "duly" is used before "served." If service, not valid in law, is no service at all, the word "duly" would seem meaning/eas. Such interpretation is not justified in law. The use of the word "duly" obviously suggests that in framing this Act, the Legislature drew a clear distinction between "served" & "duly served." Where, therefore, the word "served" only is used, we cannot add "duly" before it. Consequently, the words "notice has not been served" in S. 45 cannot be understood to mean "notice has not been duly served or served according to law." There is some distinction between "irregular service" & "non-service," which cannot be ignored. Where the Legislature use the words "not duly served," it is a case of "irregular service" & where they use the words "not served," it is a case of "non-service." 10. Mr. Where the Legislature use the words "not duly served," it is a case of "irregular service" & where they use the words "not served," it is a case of "non-service." 10. Mr. De draws our attention to S. 29 (1) of the Act of which the relevant portion is as follows: "Where immovable property has been sold.....the certificate debtor......may......apply......to set aside the sale on the ground that notice was not served under S. 7 or on the ground of a material irregularity in the certificate proceeding or in publishing or conducting the sale." It is argued that "the ground that notice was not served under S. 7" is not qualified by any words connoting irregularity in the service, though the words "material irregularity" are used in the the word "served" must be understood to mean "served according to law." In other words, "served" must be read as "duly served." But such construction, if accepted, would, in effeot, completely destroy the distinction drawn in the Act itself between "served" & "duly served." 11 I am of opinion that if the notice was actually served, as stated in the peons service report, the sale cannot be set aside under S. 45. 12. The trial Court, however, appears to have held, upon a consideration of the evidence, that the peon did not actually go to the spot & his service report was not true. If this finding be correct, certainly there was no service at all. The appellate Court, without deciding the point, seems to have assumed that the peons service report was correct. Apparently, the appellate Court did not consider it necessary to go into the question because, in its opinion, service, if effected in the manner stated in the peons report, was not valid in law & consequently it amounted to non service. But from what I have said above, this view cannot be sustained. 13. In my opinion, the case should have been sent back to the lower appellate Court for a finding as to whether the notice under S. 7 was actually served, as reported by the peon, particularly when the trial Courts finding on the point was-to the contrary. 14. But from what I have said above, this view cannot be sustained. 13. In my opinion, the case should have been sent back to the lower appellate Court for a finding as to whether the notice under S. 7 was actually served, as reported by the peon, particularly when the trial Courts finding on the point was-to the contrary. 14. I would, therefore, allow the appeal, set aside the decision of Shearer J. as well as of the lower appellate Court & remand the case to the latter Court for disposal according to law in the light of the observations made above. In the circumstances, there will be no order for costs. 15. It is to be observed that the trial Court decreed the suit in these terms: "That the suit is decreed on contest against deft. 2 & ex parte against the other defts." It was not made clear whether the pltf. was entitled to confirmation of possession, or, recovery of possession, as prayed for by him in the alternative. In case the lower appellate Court eventually confirms the trial Courts decree, the actual reliefs to which the pltf. is entitled shall be clearly stated. Lakshmikanta Jha, J. 16 I agree.