(COURT OF APPEAL)

MOHAMED ABDALLA SALIM v. HASSAN AHMED MAHROUS

AC-REV-297-1969

Principles

  Civil Procedure—Substituted service—Civil Justice Ordinance, s. 62 (2)—Enables the court to go on with the proceedings—Does not mean that person has been actually summoned

According to Civil Justice Ordinance, s. 62 (2), the words “shall be as effectual” do not mean that the person has been actually summoned, but mean that such service enables the court to go on with the proceedings in court by taking the substituted service as effectual as personal service. There.
fore, it is open for such person to show that he had no knowledge of the claim.

Advocate: Haroun Shawgi ………………………………….. for the applicant

Judgment

Ramadan All Mohamed J. October 12, 1970:- This an application for revision against the dismissal order of His Honor the Province Judge, Omdurman, of a similar application to him to revise the order of the learned District Judge, dated December 17, 1968, whereby he rejected an application by applicant-defendant to set aside the default decree.

The applicant-defendant was summoned by way of substituted service and on his default of appearance the default decree, the subject of this application, was granted. In his application to the District Judge to set aside the default decree the learned counsel for applicant submitted that the applicant-defendant was out of town at the time copy of summons was affixed in his house and he had, therefore, no actual notice of it. The learned District Judge rejected this submission and dismissed the application for reopening on the ground that in a case of a substituted service it is not necessary for the person summoned to have notice of the summons. An application to revise this order was dismissed by His Honor the Province Judge and hence this application.

In my view this application should be allowed. Substituted service cannot be equated with actual service in all respects. When a person is summoned by way of substituted service it does not necessarily follow that he has been actually served with the summons. It only enables the court to go on with the proceedings in court by taking the substituted service as effectual as personal service. The Civil Justice Ordinance, s. 62 (2) reads as follows:

“Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally.”

In explaining the words “shall be as effectual” I Mulla, Code of Civil Procedure (13th ed., 1965), pp. 690—691 comments as follows:

“These words do not necessarily mean that the summons has been duly served, but only that such service is effectual as personal service for the purpose of going on with the proceedings in court; and in spite of such service it is open to the defendant to show that he had no knowledge of the claim

For these reasons it is my decision that the orders of both lower courts be set aside.

Mahdi Mohamed Ahmed J. October 20, 1970:—I agree.