JUDGMENT : P.C. Misra, J. - This appeal under Order 43, Rule 1 of the CPC (for short, 'the Code') is directed against an order dated 26-2-1983 of the Subordinate Judge of Berhampur rejecting the application under Order 9, Rule 13 of the Code to set aside the ex parte decree passed against Defendant No. 19. 2. Respondent No. 1. Smt. Sasikala Padhi, instituted Tide Suit No 103 of 1980 in the Court of the Subordinate Judge of Berhampur for a declaration that she was senior to Defendant Nos. 3 to 21 in the Senior S.E.S. cadre and for setting aside the promotions of Defendant Nos. 3 to 21 to the Senior S.E.S. cadre prior to the Plaintiff and also for lather reliefs. The suit was taken up for ex parte hearing on 25-8-1981 and the exparte judgment was delivered on 7-9-1981. On 22-11-1982 Defendant No. 19 filed an application under Order 9, Rule 13 of the Code which came to be registered as M.J.C. No. 254 of 1982 praying for setting aside the ex parte decree passed against her. It was alleged in the said application that Defendant No. 19 Petitioner was not served with the summons of the suit and therefore, she was not aware that a suit has been filed challenging her seniority and promotion. According to her she came to know of the suit on 2-10-1982 when she met the Deputy Director of Public Instruction at Berhampur whereafter she had filed the application under Order 9, Rule 13 of the Code It was also alleged that Defendant No. 19 would suffer irreparable loss and injury if the ex parte decree was not set aside inasmuch as she had substantial points to be canvassed 10 the suit. She also filed an application u/s 5 of the Limitation Act for condonation of the delay in filing the application under Order 9, Rule 13. Respondent No. 1 who was opposite party No. 1 in the misc. case filed her objection challenging the correctness of the grounds stated by the Petitioner-Defendant No. 19. It was stated m the objection that the suit summons along with a copy of the plaint was tendered to the Petitioner-Defendant No. 19 by the process-server at Athgarh where she was then serving. case filed her objection challenging the correctness of the grounds stated by the Petitioner-Defendant No. 19. It was stated m the objection that the suit summons along with a copy of the plaint was tendered to the Petitioner-Defendant No. 19 by the process-server at Athgarh where she was then serving. She read the plaint and returned the same to the process-server saying that it should be sent through proper channel and the process-server thereafter returned the summons after making an endorsement to that effect thereon it was further stated that Defendant No. 19 was duly served with the suit summons and she had full knowledge thereof. The pleas of the Petitioner in the misc. case that there was suppression of summons and that she came to know of the ex parte decree on 23-10-1982 were all false. The non-appearance of the Petitioner was said to be deliberate and the default should not be condoned as prayed for. It was also stated that the application under Order 9, Rule 13 of the Code was barred by limitation. 3. Opposite party Nos. 2 and 3 in the misc. case who are Respondent Nos. 2 and 3 in this appeal also filed a counter supporting the plea of the Petitioner though no reason was assigned as to why they remained ex parte in the suit. Some other opposite parties filed separate counters in which they stated that the exparte decree should be set aside in the interest of justice. 4. At the hearing of the misc. case, the Appellant got herself examined as P.W. 1 and one witness was examined on behalf of the Plaintiff-Respondent No. 1. Several documents have been exhibited from both the sides. The learned Subordinate Judge on consideration of the evidence on record and after hearing the parties has rejected the application of Defendant No. 19 filed under Order 9, Rule 13 of the Code. The present appeal is directed against the said order of the learned Subordinate Judge. The Appellant in this appeal prays to allow the application under Order 9, Rule 13 of the Code and to afford her an opportunity of contesting the suit. 5. From the order-sheets of the suit it appears that the suit was instituted on 9-5-1980. On 7-10-1980 the Plaintiff filed a petition praying to dispense with the summons for service by post against the Defendants. 5. From the order-sheets of the suit it appears that the suit was instituted on 9-5-1980. On 7-10-1980 the Plaintiff filed a petition praying to dispense with the summons for service by post against the Defendants. The Court allowed the prayer and directed issue of summonses to the Defendants through Court for settlement of issue fixing 11-11-1980 for service returns. We are not concerned with the manner and date of service of the summons of the suit on the other Defendants as they had not come up with application under Order 9, Rule 13 of the Code for setting aside the ex parte decree passed against them. So far as Defendant No. 19 is concerned who is the Appellant in this appeal, it has been alleged that no summons was at all tendered to her. Ext. A is the document purporting to he service return evidencing service of summons on Defendant No. 19. It appears from Ext. A that summons along with a copy of the plaint was tendered, to the Appellant by the process, server on 2-11-1980 and, according to the report of the process-server marked as Ext.A/1, the Appellant after being explained the purport of the summons as also the date fixed therein, read the summons and the plaint herself and asked the process-server to return the same and said that she would accept the summons if it came through the Court. The process-server further reported that he did not observe the other formalities for the aforesaid reasons, and returned the summons to the Court. The said report of the process server was put up before the Court on 11-11-1980. In the order dated 11-11-1980 it was noticed by the Court that the service returns in respect of Defendant Nos. 16 and 19 had been returned as they refused to accept the same on the ground that the summons were not sent through the concerned Departments. The Court, however, did not pass any order that day for issue of fresh summons to Defendant No. 19 and postponed the matter till the service return in respect of some other Defendants is received back. On 10-12-1980 the Court directed the Plaintiff to take fresh steps against Defendant Nos. 3, 12, 14 to 17 and 19 by 20-12-1980. The Court, however, did not pass any order that day for issue of fresh summons to Defendant No. 19 and postponed the matter till the service return in respect of some other Defendants is received back. On 10-12-1980 the Court directed the Plaintiff to take fresh steps against Defendant Nos. 3, 12, 14 to 17 and 19 by 20-12-1980. No order, however, was made as to whether the service on Defendant No. 19 which was said to have been effected on 2-11-1980 was sufficient or not. But from the fact that the Court directed fresh steps to be taken against Defendant No. 19 and some others would indicate that the Court was not satisfied that there was due service of summons on those Defendants. On 20-12-1980 there is no mention in the order-sheet as to whether fresh steps for service of summons against Defendant Nos. 3, 12, 14 to 17 and 19 were taken by the Plaintiff in pursuance of the order dated 10-12-1980. All the same the Court records that ...S.R. of D. 16 and 19 returned as they refused. They are called and found absent. Service against them are held sufficient and set exparte as they are absent. Plaintiff to take steps against D 3, 6, 12, 14, 15, 17 by 2-1-1981. The service return of Defendant No. 19 mentioned in the order dated 20-12-1980 undoubtedly refers to Ext. A in which summons was tendered to Defendant No. 19 on 2-11-1980 inasmuch as no requisites were filed for issue of fresh summons to Defendant No. 19 in pursuance of order dated 10-12-1980. Fresh notice was issued against the above mentioned Defendants and they were set ex parte as they did not appear in Court in pursuance of the summonses. They Government Pleader had entered appearance on behalf of Defendant Nos. 1 and 2 and prayed for adjournment to file written statement repeatedly. The learned Subordinate Judge rejected the prayer for adjournment of the Government Pleader on 15-4-1981 and set the said Defendants ex parte on that date. After all the Defendants were set ex parte, the suit was posted to 25-8-1981 for ex parte hearing. The Appellant alleges that the service of summons on her was never effected and, therefore, she is entitled to pray for setting aside the ex parte decree. 6. After all the Defendants were set ex parte, the suit was posted to 25-8-1981 for ex parte hearing. The Appellant alleges that the service of summons on her was never effected and, therefore, she is entitled to pray for setting aside the ex parte decree. 6. The question that falls for consideration in this appeal is as to whether the summons was duly served on Defendant No. 19. 7. Rule 13 of Order 9 of the Code provides that in any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside and he can succeed 10 getting the ex parte decree set aside if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Defendant No. 19 Appellant in this case has alleged that summons was not duly served on her. The service report which is Ext. A has to be scrutinised to find out if the service effected by it is due service within the meaning of Rule 13 of Order 9 of the Code. As already stated in Ext. A the process-server reported that the present Appellant was read over and explained the contents of the summons as well as the date fixed therein. It is further noted in the said report that the present Appellant went through the summons as also the copy of the plaint and gave out that she would not accept the summons unless the same is sent through her Department. The process-server in his report admits that the other formalities required for service of summons in such event were not complied with by him and he returned the summons to the Court. Order 5 of the Code prescribes rules for issue and service of summons. The procedures to be adopted when Defendant refuses to accept service have been provided in Rule 17 of Order 5 of the Code. Order 5 of the Code prescribes rules for issue and service of summons. The procedures to be adopted when Defendant refuses to accept service have been provided in Rule 17 of Order 5 of the Code. Rule 17 is to the following effect: Where the Defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the Defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which 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 and the name and address at the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is clear from a plain reading of the rule that where Defendant refuses to sign the acknowledgment the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy and the circumstances under which he did so. Assuming that the conduct of the Appellant in not accepting the summons after going through the same amounts to refusal thereof, the process-server was required to affix a copy of the summons on the outer door of her house and he was to state in his report the circumstances under which he did so as also the name at the person who identified the house and in whose presence the copy was affixed. The process-server in this case has admitted in his report that he had not observed the aforesaid formalities and he had not mentioned the name of the identifier or the witness in whose presence Defendant No. 19 refused to accept the summons. The process-server has also admitted that he did not take anybody with him to identify Defendant No. 19 and that none on behalf of the Plaintiff had gone with him to identify her. He, however, has said that he knew Defendant No. 19 prior to the date of service of the summons on her, which facts does not find mention in his report. Therefore, it stands admitted that the requirements of Rule 17 of Order 5 of the Code have not been compiled with by the process server. As already stated the process-server did not affix a copy of the summons on the outer door or some other conspicuous part of the house in which Defendant No. 19 was ordinarily residing or working for gain. His report is to the effect that the formalities required under the law have not been complied with as he was requested by Defendant No. 19 to return the summons which he did. Some arguments were advanced on behalf of the Respondents on the authority of a decision of the Allahabad High Court in the case of Raghubir Sahai Bhatnagar Vs. Bhakt Sajjan to the effect that where the Defendant to whom the summons was delivered person refused to acknowledge it after reading the same non-affixation of the copy of the summons on the outer door or some other conspicuous part of the Defendant's house was irregularity and not illegality. The Court held, in the circumstances of that case, that the Defendant having knowledge of the date of hearing could not be said to have sufficient cause for his absence. The Court held, in the circumstances of that case, that the Defendant having knowledge of the date of hearing could not be said to have sufficient cause for his absence. Their Lordships were of the view that non-compliance of the procedures of affixation of a copy of the summons on the conspicuous part of the house of the Defendant was a mere irregularity. The proviso to Order 9, Rule 13 of the Code would apply to such a case and the Court should not set aside the ex parte decree on that ground. Their Lordships found as a fact, that the Defendant who was the applicant for setting aside the ex parte decree had refused to accept the summons and that he had full knowledge of the date of hearing fixed in the suit. Their Lordships made a distinction between illegality and irregularity in the matter of service of summons. It was observed that irregularity contemplates defect in procedure and non-compliance of the prescribed formality connotes contravention of statute which might in some cases make the action void. It was said that illegality contemplates an action forbidden by law while irregularity is mere defect in following the procedure. The aforesaid analysis tested by the principles enunciated by the Privy Council in the case of Pulukuri Kottaya and Ors. v. Emrperor AIR 1947 P.C. 67 , does not appear to me to be sound. Their Lordships observed that the distinction drawn in many cases In India between illegality and irregularity was one of degree rather than of kind. It has also been accepted in many cases that errors committed in following a procedure due to inadvertence or otherwise may be termed irregularity whereas cases in which the mandatory provisions of the Code have been disregarded or violated are termed illegality. This is not a case where some at the rules of procedure prescribed under Order 5, Rule 17 of the Cod, has been inadvertently omitted to be performed. The report of the process-server lead with his evidence in Court clearly establishes that as Defendant No. 19 did not accept the summons saying that the same should be sent through the Department the process-server returned the process without complying with the rest of the procedures required to be followed in a case of refusal to sign the acknowledgment. The report of the process-server lead with his evidence in Court clearly establishes that as Defendant No. 19 did not accept the summons saying that the same should be sent through the Department the process-server returned the process without complying with the rest of the procedures required to be followed in a case of refusal to sign the acknowledgment. In my opinion, this clearly is a case where it cannot be said that there was due service of the summons. The case before their Lordships of the Allahabad High Court in the decision reported in Raghubir Sahai Bhatnagar Vs. Bhakt Sajjan, arose out of a small cause court suit in which the summons was required to be for final disposal of the suit and not for settlement of the issues. Thus in such a case it may be possible to take a view, as has been done by their Lordships in the aforesaid case that the Defendant had the knowledge of the date of hearing of the suit as he read the summons and thereafter refused to accept the same. But in this case the summons issued by the Court (Ext. A) was for settlement of issues and not for final disposal of the suit. Thus the said decision can have no application to the facts of this case. Rule 19 of Order 5 prescribes that where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may if it has been so verified, examine the serving officer on oath or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. The Court after receipt of the report of the process-server in this case without recording as to whether the service on Defendant No. 19 was Sufficient or not directed the Plaintiff to take fresh steps for service on Defendant No. 19 and on some other Defendants. It, therefore, implies that the Court was not satisfied with the service and proceeded on the footing that there was no due service on Defendant No. 19. It, therefore, implies that the Court was not satisfied with the service and proceeded on the footing that there was no due service on Defendant No. 19. But curiously on the next date, the Court held that the service against Defendant No. 19 was sufficient and set her ex parte evidently, the order dated 10-12-1980 directing the Plaintiff to take steps for fresh service against Defendant No. 19 and others had not been recalled nor any reason has been assigned as to why the Court took a different view on the next date. In these circumstances, service on Defendant No. 19 could not be held to be due service within the meaning of Order 5, Rule 17 of the Code. It was argued on behalf of the Respondents that relief under Order 9, Rule 13 of the Code would not be available to the present Appellant inasmuch as the Defendant bad notice of the date of hearing and bad sufficient time to appear and answer the Plaintiffs claim. On account of the alleged service effected on her under Exts. A and A/1, this argument is based on the proviso added by the Amending Act of 1976 to Order 9, Rule 13 of the Code. The said proviso states 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. A plain reading of the said proviso would clearly establish beyond doubt that it applies to a case where there has been irregularity in the service of summons and does not apply to a case where there has been no service at all or where the mandatory provision of the Code has been disregarded leading to a conclusion that the service is insufficient. In my opinion, the bar under the second proviso to Order 9, Rule 13 of the Code would not apply to the facts of the case. I have already indicated that an application under Order 9, Rule 13 of the Code can be allowed on two grounds, namely. In my opinion, the bar under the second proviso to Order 9, Rule 13 of the Code would not apply to the facts of the case. I have already indicated that an application under Order 9, Rule 13 of the Code can be allowed on two grounds, namely. (i) where the summons was not duly served, and (ii) where the Defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, The Appellant has taken the plea that there was no service of summons on her. Therefore, the question of her knowledge of the date fixed in Ext. A does not arise. Some of the letters transacted between the present Appellant and the Deputy Director of Pubic Instruction have been marked as Exts. Band C to impute the knowledge of the suit with the Appellant. In view of the discussions made above, it is unnecessary and irrelevant to deal with those documents. 8. In the result, therefore, the appeal is allowed, the impugned judgment is set aside and the application under Order 9, Rule 13 of the Code shall be taken to have been allowed and the Court would now examine if the first proviso to Rule 13 of Order 9 would be applicable to set aside the entire decree or the decree so far as the Appellant alone is concerned. There would be no direction for costs. Final Result : Allowed