MC 2305/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE B.P. KATAKEY (Amitava Roy,J) This is an application u/s. 5 of the Limitation Act, 1963(hereinafter for short referred to as the Act) for condoning the delay of 201 days in preferring the ac companying appeal against the ex-parte judgment and order dated 31.08.2007 passe d by the learned District Judge, Sonitpur passed in T.S.(D) No.7/2007 dissolving the marriage between the parties. I have heard Mr. D. Mazumdar, learned counsel for the applicant-wife and Mr. T.C . Khatri, Senior counsel for the opposite party-husband. The pleaded case of the applicant-wife for condonation of the delay, is that, sh e had come to learn of the aforementioned judgment and order only on 06.05.2008 as she had not been served with the summons of the divorce proceedings at any ea rlier point of time. With reference to the reports of the process-server on 05. 03.2007 and 13.05.2009 to the effect that though he had gone to her residence fo r service of notice twice, she had refused to accept the same, the applicant has categorically denied the correctness thereof. According to her, the process-se rver had never visited her house for service of the notice of the divorce procee ding and that there was never any occasion for her to refuse the same. That the opposite party has remarried on 17.10.2008 has also been stated. The applicant has averred that after being aware of the judgment and order on 06.05.2008, she on 22.05.2008 applied for a certified copy thereof and obtained the same on 02.0 6.2008. Thereafter, she filed the appeal on 19.06.2008. In the process, a delay of 201 days occurred. The opposite party in his counter has with reference to Section 28 of the Hindu Marriage Act, 1955(hereinafter for short referred to as the Act, 1955) stated t hat the prescribed period of limitation for the appeal thereunder being 30 days, the delay, in fact, is that of 261 days. He has categorically asserted that th e process-server had visited the residence of the applicant on 13.05.2007 to ser ve the notice but as she was not present, he had to come back. The process-serv er, according to the opposite party, again on 16.05.2007 went to her residence a longwith a witness. However, as the applicant refused to accept the notice, th e process was returned unserved because of such refusal. The report of the proc ess server to that effect was endorsed by the signature of the witness accompany ing him and he (process-server) also submitted an affidavit to that effect. Acc ording to the opposite party, the learned trial Court on a perusal of the report of the process server being satisfied that the summons in the suit have been se rved on the applicant fixed the suit for ex-parte hearing on 20.07.2007. On tha t date, the learned trial Court examined the opposite party and 3 witnesses, fol lowing which the ex-parte decree was passed. The opposite party has denied that the applicant had come to know of the judgment and order only in the 2nd week o f May,2008 and contended that she having failed to offer any sufficient cause fo r condonation of delay, the instant applicant ought to be rejected. The learned counsel for the parties have pleaded in the above lines. At the fir st place, it being apparent from the amendment to the Act,1955 by Act, 50 of 200 3 enhancing the period of limitation for preferring the appeal from 30 days to 9 0 days as referred to in Sub-Section 4 of Section 28, we have no hesitation to n egate the first limb of objection of the opposite party. As the applicant, in c ategorical terms has asserted on oath that the summons/notice of the suit had no t been served on her, we have scrutinized the lower Court records called for by this Court. It transpires therefrom that on 13.05.2007 the process-server unsuc cessfully endeavoured to serve the summons/notice on the applicant as she was aw ay from her residence. He went again on 16.05.2007. According to him, the summ ons/notice when offered to the applicant she refused to accept the same and ther efore he returned the process with the remark to the said effect. He submitted an affidavit affirming the above and also obtained the signature of a witness ac companying him. The records further reveal that on 17.05.2007 i.e. the next date of the suit, th e opposite party had filed an application u/o 5 Rule 20 of the Code of Civil Pro cedure (hereinafter for short referred to as the Code) seeking the leave of th e Court to effect service of the summons/notice on the applicant by a substitute d manner in the mode as contemplated in the aforementioned legal provision. This application was registered as No.422/2007. The learned trial Court by his orde r dated 17.05.2007 though acknowledged the filing of the aforementioned applicat ion, did not pass any order thereof and instead treated the summons/notice in th e suit to be served on the applicant and fixed the suit for ex-parte hearing on 20.07.2007. This was, evidently on the basis of the report dated 16.05.2007 of the process-server referred to hereinabove. Noticeably, the learned trial Court while fixing the suit for ex-parte hearing did not make any endeavour either to examine the process-server on oath vis-à-vis the process of service claimed to have been undertaken by him and also did not pursue any enquiry in the matter to decide as to whether the summons/notice, in fact, had been served on the applic ant. A bare perusal of the report of the process-server submitted on 16.05.2007 make s it apparent that allegedly on the refusal of the applicant he had returned the process to the Court without serving the same on her or affixing a copy thereof on the outer door or some other conspicuous part of her house, where admittedly she had been present on that day. This is apparent breach of Rule 17 Order 5 o f the Code. The learned Court below overlooked the noncompliance on the part of the process-server in failing to affix a copy of the summon on the outer door or some other conspicuous part of the applicant’s house following her refusal to a ccept the same. Though, Mr. Khatri sought to impress upon us that having regard to the proceedin gs under the Act, the rigour of the prescriptions of the Code ought not to be ap plied, having regard to the detrimental consequences to follow due to the noncom pliance of the otherwise mandatory requirement of Order 5 Rule 17 of the Code, w e are not convinced by the said plea. According to us, the omission of the proc ess-server in affixing a copy of the summons/notice of the suit on the outer doo r or some other conspicuous part of the house of the applicant signifies non-ser vice thereof on her in law for all intents and purposes. The decision of the le arned trial Court, resultantly, to accept the service of summons/notice on the a pplicant and to proceed ex-parte against her, is unsustainable in law. Conseque ntially, the decree has to be construed as non est in law. Upon hearing the rival assertions made in the pleadings bearing on the issue of condonation of delay and the determination made hereinabove, we are of the unhes itant opinion that it is a fit case where the delay ought to be condoned. We or der accordingly. The Misc. Case stands allowed.