Judgment :- 1. The appellant in C.M.A. No. 164 of 1283 is the first defendant in O.S, No 692 of 1977 and the petitioner in I.A. No. 1296 of 1980 in the court below The appellant in C.M.A. No. 165 of 1983 is the minor second defendant represented by his guardian mother, in the suit and petitioner in I.A. No. 1975 of 1980. The arrav of parties in the judgment will be referred to with reference to their position in the suit. The above appeals have been filed against the common order dated 2-11-1982 passed by the sub court, Salem in I.A. Nos. 1296 and 975 of 1980 in O S. No 692 of 1977 where-under the two applications filed under O. 9, R. 13, and S. 151 C.P.C. to set aside the ex-parte decree passed by the court below on 31 8-1978 were dismissed. Though C.M.A. No. 165 of 1983 was filed bv the minor represented by his guardian mother, having regard to the lapse of time, the second-defendant-minor appears to have since attained majority. On 6-8-1990 applications in C.M.P. Nos. 10331 and 10332 of 1990 have been filed for discharge of the minor guardian and to declare the minor second defendant as a major. When the applications came up before court on 9-8-1990, the same were not opposed by the respondent. I directed the learned counsel appearing for the appellant in C.M.A. No. 165 of 1983 to proceed to argue the matter as though the applications have been ordered and that formal orders on the applications will be made along with the judgment in the main appeals. 2. The suit in the court below was filed on 17-11-1977 for specific performance of an agreement of sale said to have been executed by the first defendant for himself and as guardian of the second defendant on 13-12-1976. The second defendant entered appearance through his guardian who is his mother, on 6-4-1978. The first defendant is no other than the father of the second defendant-minor and the minors guardian is the first defendants wife. It is stated that the first defendant who is an advocate practising at Salem and the guardian for the second defendant as well as the minor second defendant are all living together in the same house. The address for service given both for defendants 1 and 2 was No. 42, Old Market Street, Salem. It is stated that the first defendant who is an advocate practising at Salem and the guardian for the second defendant as well as the minor second defendant are all living together in the same house. The address for service given both for defendants 1 and 2 was No. 42, Old Market Street, Salem. The summons appears to have been taken through post to defendants 1 and 2 (sic) on 11-12-1977 in different dates. When the process server went to the residence of the first defendant, since he had gone to Madras the process server appears to have affixed the summons after getting the affixture attested by two independent witnesses. Thereupon, summons appeared to have been taken to the first defendant through post which seems to have been returned with postal endorsement “refused”. On 6-4-1978, when the second defendant entered appearance through his counsel, the court below appear s to have held that service of summons to the first defendant was sufficient and, therefore, set the first defendant ex parte . In view of this, there was no attempt thereafter to effect any service on the first defendant by any other mode. So far as the second defendant was concerned time for filing written statement appears to have been taken on several occassions and the last of which was on 14-8-1978 when as a last chance time was extended upto 28-8-1978. Since no written statement was filed on 28-8 1978, the suit was posted for evidence on 31-8-1978 and the suit was also decreed ex parte , on that date. 3. While so on 28-9-1978, a petition under O. 9, R. 13 and S. 151 C.P C. was filed by the second defendant to set aside the ex parte decree, after serving a copy of the same on the plaintiff, But no effective steps appear to have been taken to get the same numbered for nearly about one year till 29-8-1989 when the plaintiff filed E.P. No. 350 of 1979. Between 30-9-1978 and 26-9-1979, the application appears to have been returned many times and re-presented. The claim on behalf of the second defendant was that after it was represented on 26 9-1979, the application was neither numbered nor returned and he sought for sending for the records of the registry for the perusal of the court. Between 30-9-1978 and 26-9-1979, the application appears to have been returned many times and re-presented. The claim on behalf of the second defendant was that after it was represented on 26 9-1979, the application was neither numbered nor returned and he sought for sending for the records of the registry for the perusal of the court. The non-filing of the written statement on behalf of the second defendant was claimed to be for reasons beyond the control of the guardian and not wanton, since the guardian could not get important documents. With the above averments claiming that if the ex parte decree is not set aside valuable rights would be lost, the application was moved. It could be seen from the order of the court below that in its view as per the register of the court, the application was again returned and that meant that the application was not numbered for the reasons that the defects were not cured and if it was returned, then it would not have been pending before the court at all. The court below also observed that the fact that inspile of efforts this application could not be traced out is not a ground to say that it was not returned by the court and that even if it was neither numbered nor returned, it was the duty of the petitioner to have verified again to take possession of the petition and cure the defects. It is surprising that the relevant fact as to whether the register contains any entry as to whether the return was taken and if so by whom, has not been stated by the court. But as the facts would stand another petition appears to have been filed on 17-7-1980 to set aside the ex parte decree passed on 31-8-1978. The court below felt that if the earlier petition could not have been traced, nothing prevented the filing of a fresh application one or two days after 26-9-1979 and that such a course was not adopted. 4. On 17-7-1980, it appears that on behalf of the second defendant, R.E.A. No. 432 of 1980 was filed to either dismiss the execution petition or in the alternative to stay all further proceedings in R.E.P. No. 350 of 1979 and the said application came to be dismissed on 31-7-1980. Thereupon, on 20-8-1980, the sale deed appears to have been executed by the Court. Thereupon, on 20-8-1980, the sale deed appears to have been executed by the Court. Consequent upon the same, on 17-9-1980 R.E.P No 400 of 1980 was filed by the plaintiff for delivery. 5. While matters stood thus, on 6-10 1980, the first defendant appears to have filed I.A. No. 12% of 1980 to set aside the ex parte decree passed on 31-8 1978 on the ground that he came to know of the ex parte decree only on 4-10-1980, through his tenants when the plaintiff came to take delivery of the properties. On 10-10 1980, the court appears to have directed the bailiff to hand over possession of the suit property to the plaintiff and on 15-10-1980 the bailiff is claimed to have handed over possession and the plaintiff took possession of the properties on 10-11-1980 delivery also appeals to have been recorded by the court below. 6. The applications for setting aside the ex parte decree were opposed vehemently by the plaintiff in the court below by filing a detailed counter affidavit, After hearing the applications on merits, by an order dated 2-11-1982, the applications came to be dismissed. Hence the above appeals. 7. Mr. D.I.J. Rajkumar, learned counsel appearing for the appellant in C.M.A. No. 164 of 1983 filed by the first defendant contended that there was no proper or due or sufficient service of summons in the suit upon the first defendant, that even if it is to be deemed to have been duly served on account of the endorsement of refusal made on 2-2-1978 which was meant for the date of hearing on 31-1-1978, the first defendant could not be imputed with sufficient knowledge of the required details and the failure to effect service of suit summons for the subsequent hearing renders the order setting the first defendant ex parte as well as the ex parte decree passed is liable to be set aside, that he came to know of the result of the suit only on 4-10-1980 and consequently the application for setting aside the ex parte decree made on 6-10-1980 was not only well within time but it ought to have been allow ed and the suit restored. In support of his submissions, learned counsel referred to the decisions reported in Sri Krishna Rice Mills v. Rajagopala Konar 1 , Pichai Ammal v. Vallayya 2 and Nawabjan v. Krishnan Chettiar 3 . 7. Mr. In support of his submissions, learned counsel referred to the decisions reported in Sri Krishna Rice Mills v. Rajagopala Konar 1 , Pichai Ammal v. Vallayya 2 and Nawabjan v. Krishnan Chettiar 3 . 7. Mr. R Krishnamoorthi, learned senior advocate appearing for the appellant in C.M.A. No. 165 of 1983 made the following submissions :— (1) The second defendant was a minor represented by his guardian-mother who could not file a written statement for reasons beyond her control since important documents necessary for its preparation could not be obtained in time and the court below, instead of setting the second defendant-minor ex parte , ought to have given further time: (2) The minor defendant is entitled to certain indulgent consideration and in any event the court below ought to have, having regard to the considerable prejudice to the interests of the minor, set aside the ex parte decree; (3) The minor has since attained majority and as indicated by his action in the affidavit filed in support of the petitions before this Court, he is keen on contesting the proceedings and negligence or indifference on the part of the minor-guardian should not deprive the second defendant of this opportunity to contest the proceedings in the court below, effectively. Consequently, learned counsel prayed that the order of the court below as well as the ex parte decree should be set aside. In support of the said submission, learned counsel placed reliance upon the decisions reported in Venkatratnam v. Nagappa 4 , Gadikota Siva Narayana Reddi v. Badapalli N agasubbamma 5 and Krishnammal v. Adivaraha Iyengar 6 . 9. Mr. Consequently, learned counsel prayed that the order of the court below as well as the ex parte decree should be set aside. In support of the said submission, learned counsel placed reliance upon the decisions reported in Venkatratnam v. Nagappa 4 , Gadikota Siva Narayana Reddi v. Badapalli N agasubbamma 5 and Krishnammal v. Adivaraha Iyengar 6 . 9. Mr. S. Sethuratnam, learned senior Advocate appearing for the respondent/plaintiff in both the appeals contended that the mere fact that the second defendant is a minor does not by itself constitute a sufficient cause or ground for setting aside the ex parte decree, that the non-appearance of the minor-guardian could be a valid ground for proceeding the matter ex parte and passing an ex parte decree and that in any event it will be always open to the minor to file a separate suit on attaining majority in accordance with law to set aside the alienation and consequently there is no need to set aside the ex parte decree having regard to the shown indifference and lethargy on the part of the minor-guardian in prosecuting the matter before the court below at all stages. With reference to the claim by the learned counsel for first defendant, learned counsel for the respondent submitted that as per the amended provisions of O. 9, R. 13, C.P.C. mere irregularity in the service of summons is no ground to set aside the ex parte decree if it was satisfied that the defendant had notice of the date of hearing and sufficient time to appear and answer the plaintiffs claim as in this case, that on the facts of the present case, a presumption can be drawn on valid service and inasmuch as the second defendant-minor and the minor-guardian mother who is no other than the wife of the first defendant are all living under the same roof, it could be safely presumed that the first defendant was aware of the dates of hearing and the developments of the suit, he being a lawyer himself practising at Salem and consequently there is no justification to set aside the order of the court below, as well as the ex parte decree. In support of his submission, learned counsel referred to the decisions reported in Kathaswamy Chettiar v. Ramachandran 1 , Venkata Surya Subbarayudu Sowcar v. Mappanna Rao Sowcar 2 , Ramanathan v. Mayappa Chettiar 3 , Krishnammal v. Adivaraha Iyengar 4 , Kandaswami Gounder v. Vellayya Gounder 5 , and Muthu Pillai v. Seruvakkai 6 . 10. After a careful consideration of the matter on the basis of the respective submissions of the learned counsel appearing on either side, and the judicial pronouncements produced in support thereof. T consider this case to be a fit and proper one wherein the order appealed against as well as the ex parte decree deserves to be set aside and the suit restored to file to be proceeded with after giving an effective opportunity to the parties. 11. The claim of the appellant in C.M.A. No. 165 of 1983 may be taken up for consideration first. Indisputably the appellant was a minor then and though the first defendant appears to have executed the suit agreement on behalf of the minor also as his guardian, the plaintiff seems to have impleaded the minor represented by his mother as guardian. Though it is a fact that time was being granted for filing written statement from time to time, it has been pleaded by the then minor (guardian) that the delay in the preparation and filing of the written statement was on account of the difficulty in securing certain copies of documents. Though certain amount of negligence and lethargy has been exhibited in the matter of getting the application filed on behalf of the second defendant on 28-9-1978 to set aside the ex parte decree, the court below does not appear to have adverted to the relevant facts in their proper perspective and applied its mind to the relevant consideration. It was not that much difficult for the court below to have properly verified the records in court and fixed the responsibility as to on account of whose fault the application disappeared from the scene and could not be traced. Instead of doing so, the court below proceeds on assumptions and jumps to the conclusion that nothing prevented the second defendant to file another application immediately. Instead of doing so, the court below proceeds on assumptions and jumps to the conclusion that nothing prevented the second defendant to file another application immediately. Even in respect of bonafides, except stating that the reason assigned cannot be taken as sufficient reason and both the applications lack bonafides, the court below did not specifically advert to the genuiness or otherwise as well as the bonafides, of the reason pleaded by the second defendant for the delay in the preparation and filing of the written statement. The suit was at that point of time only in the initial stages and it can be reasonably presumed that there was no possibility of the suit rea ching a finality even at that stage and that any further grant of time would not have affected the expeditious disposal of the suit. 12. Having regard to all these, the court below would have done well to have restored the suit imposing certain effective conditions not only with reference to the schedule of further progress of the suit but also with reference to costs. Instead of doing so, the court below appears to have hurried through the matter and in my view there seems to be no justification for the same. Instead of doing so, the court below appears to have hurried through the matter and in my view there seems to be no justification for the same. Apart from the decisions relied on by the learned counsel for the appellant in this appeal, in one of the cases referred to in those judgments, namely, Venkatratnam v. Nagappa 1 , the learned Chief Justice held : “It appears to be, therefore, that the position in justice is that, if there are minor plaintiffs and defendants who are represented as they must be by a next friend and the next friend is absent, through, whatever cause it may be at the trial, then that fact alone is a sufficient reason for setting aside an ex parte decree passed against minor defendants or for setting aside an order of dismissal of the suit in the case of minor plaintiffs.” No doubt, the very same learned Chief Justice presiding over a division bench in a decision reported in Venkatasurya Subbaravudu Sowcar v. Bapannarao Sowcar 2 held that the setting aside cannot be sought for on the basis of Venkatratnam v. Nagappa 1 even where the action of the guardian lacks bona-fides and if the absence of the guardian was deliberate and in pursuance of a plan to obstruct a litigation and the absence was not bona fide. The benefit of the earlier judgments referred to therein including the one in Venkatratnam v. Nagappa 1 cannot be availed of in the view of the learned Chief Justice. The Court below, except noticing certain lapses and acts of negligence has not come to any positive conclusion about any obstructive attitude or want of bonafides in the initial stages of the suit when the written statement could not be filed in time and there was non-appearance. On the other hand, as referred to already, the court below only jumps to the conclusion that both the applications lack bonafides. This approach and conclusion of the court below, in my opinion, is neither reasonable nor sufficient to deprive the minor represented by the guardian of their normal indulgence that this cause deserves to be shown. 13. On the other hand, as referred to already, the court below only jumps to the conclusion that both the applications lack bonafides. This approach and conclusion of the court below, in my opinion, is neither reasonable nor sufficient to deprive the minor represented by the guardian of their normal indulgence that this cause deserves to be shown. 13. The Supreme Court in a decisionreported in Begum Para Nasir Khan v. Luiza Matilda Fernandes 3 has stated as follows : “The minors are entitled to an indulgent consideration so far as procedural lapses are concerned at the hands of the court It is not for a moment suggested that no ex parte decree ean be made against the minors, but if the minors, are represented by a person appointed by virtue of his office having no interest in the minors and if the decree is an ex parte decree, and the service Was inefficient albeit formal we would be failing in our duty if we do not set aside an ex parte decree, and remit the case for adjudication on merits. We say no more.” Therefore, I consider that the interest of the minor requires the order of the court below as well as the ex parte decree to be set aside. 14. Learned counsel for the respondent, as referred to supra, submitted that afterall it is the very same guardian who has filed the appeal before this court and at anyrate the dismissal of the appeal will notsubstantially prejudice the interest of theminor inasmuch as it will be alwaysopen to the minor on becomingmajor to challenge the alienation if itcould be shown that the guardian was negligent in the performance of her duties. Inmy view, this becomes purely an academicconsideration having regard to the facts ofthis case. The second defendant-minor hassince attained majority and he had filed twoapplications to declare him as a major aswell as to discharge the guardian contending that the guardian has not been diligentin defending the case and that the ex partedecree itself be void and not binding on him. The second defendant-minor hassince attained majority and he had filed twoapplications to declare him as a major aswell as to discharge the guardian contending that the guardian has not been diligentin defending the case and that the ex partedecree itself be void and not binding on him. Therefore, instead of driving at this stage the erstwhile minor to the formality of filing a separate suit, I consider that the interests of justice will be better served in setting aside the ex parte decree and restoring the suit itself for trial with a time bound schedule to dispose of the suit by the court below. 15. Coming to the appeal filed by the first defendant, in my view, the same is liable to be allowed on two grounds: (a) There had been no valid service and (b)inasmuch as the decree passed, having regard to the nature of the claim etc. being one and indivisible and that it will result i? inconsistent decrees if the entirety of the ex parte decree is not set aside. The scope of O. 5, R. 19A C.P.C. which loomed large during the course of arguments as well as the validity of service effected in a matter like this, came up for consideration in a decision reported in Ganapathy v. Anbalagan 1 wherein Nainar Sundaram, J., has analysed the legal principles in his own inimitable style thus : “19. Apart from the explicit language of the provisions concerned, as they are framed in this State, there is a valid and sound reason for construing the said provisions in the above manner. When the matter comes within a purview of Rs. 9 to 19A, personal service as such cannot be skipped over. Service by registered pest could only be in addition to and simultaneous with the process for personal service. The object of the provisions is apparently to secure the presence of the defeneant. The process of p ersonal service will necessarily have to adhere to the rules governing the same and in particular R. 17. When service by registered post is resorted to, both in addition to and simultaneous with the process for personal service, there is a discretion with the court to accept or not to accept either the postal acknowledgement duly signed or the postal endorsement of refusal, as sufficient proof of service. When service by registered post is resorted to, both in addition to and simultaneous with the process for personal service, there is a discretion with the court to accept or not to accept either the postal acknowledgement duly signed or the postal endorsement of refusal, as sufficient proof of service. The vesting of such a discretion with the court, as stated above, has got a sound and valid reason behind it. It is not as if Courts have not come across cases of malpractices on the part of, not a very honest postman making endorsements of ‘refusal’ at the instance of the opposite party without even tendering the postal cover to the concerned party, and if the court is to be left without a discretion, but to accept such an endorsement as sufficient proof of service, it will definitely lead to a miscarriage of justice. While Cl.(1) of R 19A with the proviso thereto enjoins upon the court, if it thin ks necessary to order postal service, only in addition to and simultaneous with personal service, Cl.(2) with the appropriate amendment in this S ate, has given the discretion to the court to accept or not to accept the postal endorsement either of the acknowledgement or of refusal, as sufficient proof of service. Hence, we can take it that personal service is the normal and inescapable rule when the matter remains within the ambit of Rr. 9 to 19A and service by registered post, wherever the court thinks it necessary, can only be in addition to and simultaneous with personal service. Jn the present case, there has been a clear transgression of the express mandates of the relevant provisions of O.S, of the code and hence, the revenue court committed a grave error of law when it choose to proceed against the cultivating tenant ex parte.” 16. Applying the said ratio, if the matter is considered one has to come to the inevitable conclusion that there had been no valid set vice of summons upon the first defendant notwithstanding the fact that he might have been also adopting certain amount of dilatory tactics. That at any rate does not obviate the necessity for the strict compliance with the provisions laid down in the Code of Civil Procedure pertaining to service of summons in the suit. That at any rate does not obviate the necessity for the strict compliance with the provisions laid down in the Code of Civil Procedure pertaining to service of summons in the suit. Hence on the facts of this case there is no scope for applying the presumption under S 114 of the Evidence Act to the situation under consideration. Consequently, the ex parte decree is liable to be set aside in so far as he is concerned too. As referred to above, the suit agreement of sale is a joint one and concerned with a single item of property and having regard to the nature of the claim, the decree that had been passed has got to be considered as one and indivisible. If, therefore, it is not set aside in its entirety, it may lead to absurd results and conflicting decrees. 17. For all the reasons stated above, the order of the court below is set aside and these civil miscellaneous appeals are allowed. Consequently, ex parte decree dated 31-8-1978 is hereby set aside and the suit O.S. No. 692 of 1977 on the file of the sub court, Salem is directed to be restored to its file and disposed of from the stage at which it was set ex parte and the suit will be proceeded further and in accordance with law. 18. The matter has been already considerably delayed. Therefore, there is every necessity to see that the suit is disposed of at the earliest opportunity. The respective counsel appearing on either side assures this court that their clients will give the utmost co operation to the trial court in having the suit disposed of at an early date and within a time that may be stipulated by this court. I direct the trial eourt to dispose of the suit within four months from the date of receipt of records, giving top priority for the disposal of the suit. 19. During the pendency of the application for setting aside the ex parte decree, the trial court executed the sale deed in favour of the respondent and as per the records of Court, it transpires that delivery of the property was also effected. As a matter of adjusting equities between the parties, I consider that the present status quo may be continued until the suit is finally disposed of as directed by this court. No costs.