Where, however, the decree is of such a nature that it cannot be set aside against such defendants only it may be set aside as against all or any of the other defendants also. No court shall, however, 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. Such application, supported by an affidavit, must be filed within 30 days of the date of the decree or from the date when the defendant first came to know of the same.
(Art. 164, Limitation Act). A regular suit does not lie to set aside an ex parte decree merely on the ground of non-service of summons. But where an ex parte decree is alleged to have been obtained by a plaintiff by fraud, the defendant is entitled to institute a regular suit to set aside the decree on the ground of fraud.
[Abdul v. Mohammad, (1894) 22 Cal. 605]. (b) The defendant should make an application to the court under O. 6, R. 5, C.P.C.
for further and better particulars of any matter stated in the pleading and the court be further requested under O. 6, R. 16, to strike out or amend any matter in the plaint which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the suit, or which is otherwise an abuse of the process of the court. (c) The plaintiff should apply for substituted service under O. 5, R. 20, C.
P.C., and where the court is satisfied that there is reason to believe- that the defendant is keeping out of the way for the purpose of avoiding service, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house, and also upon some conspicuous part of the house, if any, if which the defendant is known to have last resided or carried on business or personally worked for gain, or in such manner as the court thinks fit. Where the court orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. Substituted service by order of the court shall be as effectual as if it has been made on the defendant personally.