Judgment Aftab Alam, J. 1. This appeal arises from an order dated 10-12- 1990 passed by Subordinate Judge VI, Patna in Misc. Case No.11/1987. By the order under appeal, the learned Subordinate Judge rejected a petition filed by the appellant under Order IX, Rule 13 of the Code of civil Procedure and refused to set aside the ex pane decree, dated 20-9-1986 passed against the appellant in Money suit No.234-1973/73-1985. 2. It appears that the State of Bihar had placed a purchase order on the appellant, m/s. Hooghly Marine and Engineering company for the supply of certain electrical equipments. The supply of the goods under the purchase order gave rise to some dispute between the parties and led to the filing of two suits. The first suit was filed by the appellant in the court of Munsif, Chandernagore where it was registered as M. S. No.1/1970. In this suit the appellant-plaintiff claimed payment of the dues amounting to 10% of the price of the goods supplied in terms of the purchase order. Another suit (with which we are concerned in this appeal) was filed by the State of Bihar on 1-10-1977 in the court of Sub-Judge. I, Patna where it was registered as M. S. No.243/1977. In this suit, the State of Bihar claimed recovery of Rs.36,628.20 (along with interest @ 6%) already paid to the appellant-defendant on the allegation that the goods supplied by it were not in conformity with their description and specifications given in the purchase order and were wholly useless. 3. On 5-9-1979 the State of Bihar, the defendant in M. S. No.1/1970 in the chandernagore court filed a petition praying for an adjournment. In this petition a reference was made to M. S. No.234/1977, filed by the State of Bihar in the Patna Court and it was stated in that regard that both the suits arose substantially from the same set of facts and circumstances. It was further stated in this petition that the State of Bihar had accordingly filed a petition in the supreme Court on 2-2-1979 praying for the transfer of the Chandernagore suit to Patna where it could be tried alongwith M. S. . No.234/1973. The Munsif, chandernagore, granted the adjournment as prayed for and passed the following order on 5-2-79 : "ld. Lawyer for pltf. files Hazri. No.234/1973. The Munsif, chandernagore, granted the adjournment as prayed for and passed the following order on 5-2-79 : "ld. Lawyer for pltf. files Hazri. Defendant No.1 files a petition stating that he has filed an application before Hon ble Supreme court for transferring this suit in the court of ist Sub- Judge, Patna for analogous trial of the same with M. S.234 of 1977 of that court and also a petition for stay and as such pray for 2 months time for bringing stay order. Defdt. No.1 also files some documents as per firstly in support of his petition. Copy served. Heard. Considered. Prayer is allowed for ends of justice.23-3-79 for stay P hearing. No costs. Defdt N.1 to bring stay order in the mean time. " Apparently the State of Bihar was unsuccessful in obtaining an order from the Supreme Court transferring the chandernagore case to Patna and the two suits before the two courts proceeded independently. 4. In the Patna suit, summons were sent only once to the appellant defendant under registered cover. By order dated 12-8-1981 passed in the suit, it appears that the registered notice returned unserved whereupon the court directed the plaintiff to take steps for substituted service of notice by its publication in a daily newspaper published from Hooghly and directed it to deposit the cost of publication by 17-11-81. On 4-5-82 the suit was dismissed for default in making the deposit of the publication cost. For the restoration of the suit, the State filed a petition under Order IX, Rule 4 of the c. P. C. on 22-5-82 which was numbered as Misc. Case No.31 of 1982. The suit was finally restored by order dated 22-10-83 without issuing any notice to the defendant. Finally, the notice was published in the Statesmen of 20-2-1986. This notice suffered from some minor error, namely, though the name of the company was correctly printed, the name of its Managing Director through which it was represented was mis-ptinted as Sushil Kumar Sao in place of Sushil Kumar Sen; there was a similar mistake in the address of the company as well and Balughat was printed in place of Babughat. On 12-3-96 the copy of the Statesmen in which the notice was published was brought on the record of the case and by the order passed on that date, the suit was fixed for ex pane hearing on 11- 4-86. Finally, the suit was heard ex pane and was allowed by judgment and decree dated 20-9-86. 5. On 8-5-87 the State of Bihar filed a certified copy of the judgment in the suit before the Chandernagore court. According to the appellant, he came to learn about the Patna suit (M. S. No.234/77/73/1985 for the first time on that date when the certified copy of the decree was filed in the Chandernagore court. Thereafter, he came to Patna and got the record of the suit inspected. Thereafter the petition under Order IX, rule 13 of the Code was filed on 3-6-87 within 30 days from the date of his knowledge of the decree. On behalf of he appellant, it has been asserted that no summons was ever served on him and he had no knowledge in formation regarding the suit and he got information about the suit for the first lime only when the certified copy of the decree was filed in the Chandernagore court on 8-5-87. It was further stated that the publication of the notice in the Statesmen, with misprints in the name and address of the defendant would also not constitute a valid service and hence a prayer was made to set aside the ex parte decree and to rehear the suit on merits. 6. As regards the mis-prints in the notice published in the newspaper, the learned Sub Judge has held, that those were quite insignificant and on that basis it was not possible to hold that there was no publication of notice at all. From the impugned order, it appears that the learned Sub-Judge has primarily relied upon the filing of the petition in the Chandernagore court in which a reference was made of this money suit pending at Patna. It is further noted in the impugned order that while granting adjournment as prayed by the State, the court there had passed the order dated 5-2-1979 in which also the number of the suit at Patna was mentioned. It is further noted in the impugned order that while granting adjournment as prayed by the State, the court there had passed the order dated 5-2-1979 in which also the number of the suit at Patna was mentioned. The learned Sub-Judge has accordingly held that there could be no denying that the appellant-defendant had got the knowledge regarding this money suit way back in February, 1979 and there was no explanation from his side for not taking any action whatsoever for the next eight years. The material portion of the impugned order is as follows : "the defence of non-service of summons upon the applicant would be available to him only when he proves that he had no knowledge of the suit. Ext. A which is a certified copy of order sheet shows that the applicant had received knowledge of the suit on 5- 2-79. The applicant could not claim as to why he did not contest the suit for about 8 years. It is further said on behalf of the applicant that in the application dated 5-2-79 the opp. party had not mentioned the exact date of the Money Suit No.234/77. When the applicant had knowledge of the suit, he should have taken pains to ascertain the date of the suit during 8 years. Therefore, in my considered view, the applicant had knowledge of the suit on 5-2-79 as such his misc. Case No.11/87 is badly time barred. Further, I find that there is no ground to set aside the ex prte decree on the ground of non-service of summons. " (Emphasis is mine)It appears to me that the learned court below has placed much reliance on the circumstance that the Patna suit had found a mention in the order passed by the Chandernagore court on 5-2-79. From the under-lined passages in the above quotation, it appears that according to the court below it was the defendants obligation to find out the date of hearing once the suit had come within his knowledge. It is further to be noted that the court below has used that date to hold that the petition under order IX, Rule 13, filed on 3-6-87, was badly time-barred. In my view, the court below has committed an error on both counts. It is further to be noted that the court below has used that date to hold that the petition under order IX, Rule 13, filed on 3-6-87, was badly time-barred. In my view, the court below has committed an error on both counts. As regards limitation is a petition for setting aside an ex parte decree must be filed within 30 days from the date of the decree or in case of non-service of summons within 30 days from the date of the knowledge of the decree. On 5-2-79, what to speak of the passing of the decree, even summons were yet to be issued in the suit. Hence, there is no question of reckoning the period of limitation from that date and the findings of the court below that the application was barred by limitation is patently incorrect. 7. Coming now to the observations that the appellant-defendant having got the information regarding the pendency of the suit, he was obliged to find out the next date of hearing, it is quite contrary to the legal position. The appellant having come to learn that a suit was filed impleading him as a defendant would be well within his right not to act on that information and to expect that a notice to him would come from the concerned court. In Suresh Singh and others v. Maheshwar Singh and others, 1979 b. L. J.549, a learned single Judge relying upon an earlier decision in the case of Sudhanshu Bhattacharya V/s. Chairman, patna City Municipality, AIR 1932 Patna 150, held as follows : "in my opinion, the contentions are well founded and must succeed. This Court in the case of Sudhanshu Bhattacharya V/s. Chairman, Patna City Municipality, AIR 1932 patna 150 held that the mere fact that the defendant knew that a suit had been instituted was not sufficient for dispensing with the necessity of proper service of summons. In that case the defendant had refused to receive summons on behalf of his minor brothers on the ground that he was not their guardian. He refused to acknowledge his own summon. The trial court holding that the service was sufficient in law, disposed of the case ex-parte in favour of the plaintiff. In that case the defendant had refused to receive summons on behalf of his minor brothers on the ground that he was not their guardian. He refused to acknowledge his own summon. The trial court holding that the service was sufficient in law, disposed of the case ex-parte in favour of the plaintiff. The defendant having failed in his application under Order IX, Rule 13 of the Code, came to this Court where it was held that the service was not sufficient and it was immaterial whether the defendant knew about the suit. It was very clearly ruled that the defendant sued (sic) a right to receive notice of the suit and to have the date fixed for hearing. " It is, thus, clear that merely on the basis of the petition filed in chandernagore Court on 5-2-1979, the appellant could not be deprived of the right of receiving the summons issued from the court informing the date of hearing fixed in the suit. 8 In this regard, it also cannot be overlooked that after the filing of the suit came to the knowledge of the defendant on 5-2-79, the suit itself was dismissed for default on 4-5-82 and was restored only on 22-10-1983 without any notice or information to the defendant. If the knowledge of the pendency of the suit is to be attributed to the defendant, so must also be attributed the knowledge of the suit having been dismissed for default. 9. I am further of the opinion that in the facts and circumstances of the case, even the substituted notice published in the newspaper cannot justify the ex pane hearing of the suit. Recourse to substituted service under order V, Rule 20 of the Code can be taken only when materials are placed before the Court to show "that the defendant is keeping out of the way for the purpose of avoiding service" (See air 1972 Patna 142 ). In this case, there was absolutely no material much less any finding recorded by the court below that the defendant-appelfant was keeping out of way for the purpose of avoiding service. As noted above, a registered notice was issued to him only once and that had been returned unserved. On that basis alone, it could hardly be said that the defendent was keeping out of the way in order to avoid service of notice. As noted above, a registered notice was issued to him only once and that had been returned unserved. On that basis alone, it could hardly be said that the defendent was keeping out of the way in order to avoid service of notice. On the contrary the order sheet presents a dismal picture of the manner in which the case was being conducted on behalf of the plaintiff-State. As stated above, the case was filed on 1-10-1977 and it was admitted on 30-3-79 and yet the summons was issued after more than a year simply because no pairvi was being done on behalf of the State and on consecutive dates no one was appearing on behalf of the plaintiff State. In those circumstances, in my view, there was no justification for taking recourse to substituted service. It is further to be noted that before fixing the suit for ex pane hearing, the trial court was required to give a finding as to the date of the deemed service of summons on the defendant to find out whether the defendant had, after the knowledge of the date of hearing sufficient time to appear and answer the plaintiffs case. From the order-sheet of the suit, it appears that no such finding was recorded by the learned trial court. I am, therefore, of the view that the action of the court below in fixing the case for ex pane hearing was also unsustainable in law. 10. Having thus considered the materials on the record, 1 am of the opinion that the appellant has succeeded in making out a case for setting aside the ex pane decree passed in the suit and the court below erred in rejecting its application under Order IX, Rule 13 of the Code.1 accordingly set aside the order of the court below and allow the appeal as well as the application under Order IX, Rule 13 of the Code. The subordinate Judge shall now proceed with the hearing of the suit in accordance with law. 11. In the result, this appeal is allowed, however, without any order as to costs. Appeal Allowed